(5nrnfU ICam ^rijnnl SItbrari| Cornell University Library KFN5995.V27 1873 3 1924 022 791 275 Cornell University Library The original of tiiis book is in the Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/cletails/cu31924022791275 A TREATISE PRIICIPLES OF PLEADING CIVIL ACTIONS UNDER THE MW YORK CODE OF PROCEDURE. By GEOEGE van SANTVOORD, COUKSELOR AT LAW. IN"eVy^ UEclitiorL — ErLlarged. and. Correoted. By NATHANIEL C. MOAK, COUNSELOR AT LAW. "The substantial rules of pleading are founded in strong sense, and in the soundest and closest logic; and so appear when well understood and explained; though, by being misunderstood and misapplied, they are often made use of as instruments of chicane." — Lord Mansfield. ALBANY: JOHN D. PARSONS, Jr., PUBLISHER. 1873. tC2.^ /^^-^c-,/ Entered according to act of Congress, in the year eighteen hundred and seventy-three, By JOHN D. PAESONS, JE., In the office of the Librarian of Congress, at "Wasliington, D. C. WEED, PAHBONS AND COMPANY. PRINTERS AND ST ERE OTT P E R S, ALBANY, N. Y. PREFACE. Almost the first step a lawyer is called upon to take in his case is to present his client' s cause of action or defense by the proper pleading. The art of doing this with neat- ness, perspicuity and in logical order is one of the most desirable, as it is one of the most difiicult, attainments in the profes^wi.^nt :^guii;es a t^iorbugh knowledge of the law of the entire case m order to determine what facts must necessarily exist and be alleged in order that the cause of action or defense may be established. In many cases the form or the substance of the relief to be obtained depends upon the existence or non-existence of certain other facts, the averment of which being optional with the pleader, he is required to determine in advance whether he will allege them or not. No step in the case requires more caution or shrewdness. No man can be a good lawyer who is not a good pleader. If he do not know what facts it is necessary to allege, he cannot know what it will be necessary to prove at the trial, and he will be found at nisi prius, with- out the means of establishing facts which oftentimes exist, and upon which, or the lack of which, his case must be determined for or against him. Since the Code, unfortun- ately for the profession and for the cause of justice, lawyers and judges have too often regarded the science of pleading as an accomplishment rather than a requirement. It is now a quarter of a century since its adoption. Its object was to sweep away certain forms and technical distinctions not deemed necessary for the proper and orderly adminis- IV PREFACE. tration of justice between suitors. It establisted no new rules as to the substance of a good pleading, and yet, within the scriptural definition of idolatry, a considerable proportion of the pleadings of the present day might be worshiped without fear of incurring the Divine displeas- ure. If the present work shall contribute to the awakening of an increased interest in regard to the necessity of a higher standard of pleading, these labors will not have been in vain. In order to give the student an idea of the examination of the law of a case, which is deemed neces- sary before attempting the preparation of a pleading, some two hundred pages (pp. 291-494) of new matter upon various causes of action, with reference, in a foot note to each, to the more prominent works which may be consulted with profit, have been added. About fifty pages upon defenses (pp. 661-707) have also been added. They are given in alphabetical order. It was at first intended not to index- the new matter in detail, but simply to refer, in the index, to the subject. In order to present an illustration or quali- fication of the subject under consideration, a case there given has been occasionally used under another, thus pre- senting a few seeming repetitions. The index is new. In preparing it the editor became satisfied that the value of the work at nisi prius would be much increased by fully indexing the new matter, and this has been done. Had this method been earlier determined upon, the few seeming repetitions could have been avoided. An addenda has been added (pp. 851-905), bringing down the work to the time the index goes to press. The editor' s own matter in the body of the work is included within brackets, the marginal paging being preserved. In order that citations to the Revised Statutes and Session Laws could be readily found from any edition, the original or marginal pagings have been given with a further reference to Judge Edmonds's PREFACE. V compilation thereof. It was at first proposed to follow the present volume with precedents, but as the Messrs. Abbott have, in their two volumes of "Pleadings and Forms," given the profession a copious and an excellent set of forms, another volume would be superfluous. A volume of forms accompanied the last edition of this work, but as the Messrs. Abbott's compilation is far the better, it is recommended that theirs should be procured by those desiring precedents, rather than the volume originally- published as Vol. 2 of Van Santvoord's Pleadings. Mr. Chaeles J. Buchanaw has read the proofs, verified the citations and rendered much valuable assistance in the preparation of the work. Mr. Haery Jeeeerson has prepared the table of cases cited, read the proofs and verified the citations thereof. Albawy, July, 1873. NATHANIEL C. MOAK. CONTENTS. CHAPTER I. OF PLEADINGS IN GBOTSKAL. PAOB. Sec. 1. Origin and History of Pleading 7 Seo. 3. Pleading as it existed before the Code 14 Sbc. 3. General Changes effected by the Code 18 Sec. 4. Of the Rules to determine the suiiiciency of the Pleadings under the Code 33 CHAPTER II. OF THE PAKTIBS TO AN ACTION. Sec. 1. The appearance of the Parties 53 Sec. 2. Who are the proper Parties Plaintiff. 64 Sec. 3. Who are the proper Parties Defendant 105 CHAPTER III. Of joinder of actions 183 CHAPTER IV. OF THE COMPLAINT. Sec. 1. The Title of "the Complaint 154 Sec. 2. Statement of facts 161 Sec. 3. The Demand for Relief 273 Sec. 4. The Verification 379 Sec. 5. Supplemental Complaint 283 CHAPTER IV A. Sec. 1. Complaint in Particular Cases 291 CHAPTER V. OF THE ANSWBB. Sec. 1. General Nature and use of an Answer 495 Sec. 3. General and Specific Denial 510 Sbc. 3. The Statement of New Matter in the Answer 547 VUl CONTENTS. PAGE. Sbc. 4. Counter-claim, Nature of, and when and how pleaded 613 Sec. 5. The Verification of the Answer 641 Sec. 6. Sham, Irrelevant and Frivolous Answers and Defenses 645 Sec. 7. Supplemental Answer 654 CHAPTEE Va. Sec. 1. Particular Defenses 661 CHAPTER VI. OF THE BBPJjT. Sec. 1. What the Reply must contain, and how pleaded 708 Sec. 3. Verification of the Reply 734 Sec. 3. Sham, Irrelevant and Frivolous Reply 735 Sec. 4. Supplemental Reply 737 CHAPTER VII. OF THE DBMTTKBBB. Sbc. 1. Nature and use of the Demurrer 730 Sec. 3. What Matters in the Complaint may be Demurred to 735 Sec. 3. What Matters in an Answer or Reply may be Demurred to 758 Sbc. 4. Grounds of Demurrer, how to be stated 765 Sec. 5. Objection, when may be taken by Answer, when by Motion or Demurrer, and when deemed waived 769 Sec. 6. Frivolous Demurrer and Practice thereon 775 CHAPTER VIII. OB THE ISSITB. Sec. 1. Issues of Law and of Fact 779 Sec. 2. How and where Issues are to be tried 788 Sec. 3. Effect of the Pleadings, and what Facts deemed admitted 796 Sbc. 4. How Pleadings to be construed 808 Sec. 5. Special Rules applicable to Pleadings 808 CHAPTER IX. OB AMENDMENTS, TAEIANCES AND MISTAKES IN PLEADING. Sec. 1. Amendments in general, how and when allowed, and on what terms 817 Sec 3. Variances between Pleading and Proof 838 Sec. 8. Defects in Pleading, when and how aided 847 Addenda 851 TABLE OF CASES CITED. PAGE. Abbev.Clark 498 Abbott V. New York, etc 208 Abbott T. Parfitt 339 Abbott T. Strafford 889 Abeel v. Van G elder 130 Abell V. Douslass 466 Aberdeen v. Blackman 303 Abrabam v. Conyngliam 671 Abrey v. Crux 692 Acker V. Finn 70 Aokernian v. Ackerman 366 Ackley v. Tarbox 55, 61, 133, 757 Adams v. Adams 489 Adams v. Bisseil 140 Adams y. Fort Plain Bank 683 Adams v. Green 434 Adams v. Leland 407 Adams v. Mayor 486, 487 Adams v. Sage 694 Adams v. SherriU 180 Adsit V. Brady 311, 386 JStna Ins. Co. v. Wbeeler 856, 867 Aicklin v. Williams 660 Aiken Y.Hyde 686,694 Aiken v. Short 377 Aiken v. Western, etc 460 Ainslie v. Boynton 427 Albany, etc., v. Devendorf 332 Albany v. Wilbur 332 Alcott V. Boston, etc 485 Alden v. Clark 103 Alder t. Bloomingdale . . . 175, 176, 177, 181 Alderman v. French 778 Aldrich v. Albee 394, 701 Aldrich v. Lapham 237 Alexander v. Crosbie 413 Alexander v. Vane 383 Alfred v. Watkins 644, 735 Alger V. Miller 399 Alger V. Scoville 110, 134, 143 Alger V. Sherman 95 Allaire v. Ouland 293 AUamon v. Mayor, etc 406, 493, 494 Alleman v. Dey 704 Allen V. Addington aS7, 738 Allen V. Brown 71, 75, 382, 498 Allen V. Buffalo 443 Allen V. Compton 819 Allen V. Fosgate 125 Allen V. Jaquisb 380 Allen V. MoPherson 481 Allen T. Malcolm 733 Allen V. Mercantile Ins. Co 520 Allenv.Mille 681 Allen ¥. Patterson 199, 203, 311, 804, 806 Allen V. Priestman 671 Allen V.Smith 354 Allen V.Todd 901 Allis V. Leonard 527, 546, 648 Althorf V. Wolfe 375, 451 Alwood V. 376, 413 Ambler v. Skinner 364 Amburgber v. Marvin 206, 674 Ajuerican, etc., v. Son 666 B Ames v. Armstrong 872 Ames V. Harper 130, 131 Amesbary v. Bowditch 677 Amey v. Long 483 Amoskeag, etc., v. Garner 447, 704 Amy V. Supervisors 469 Anable V. Anable 59,283 Anable y. Conklin 516,787 Anable v. Steam Engine Co 533 Anderson v. Anderson 100, 1U3 Anderson v. Case 877 Anderson V. Dickie 384 Anderson v. Hill ... 60, 111, 142, 26i, 274, 753 Anderson v. New Jersey, etc 374 Anderson v. Nichols 336, 460 Anderson v. Sherwood 405 Andrews v. Astor Bank — 175, 177 Andrews v. Foster 399 Andrews v. Powys 481 Andrews v. Eowan 330, 411 Andrews v. Storms 644 Angell V. Hadden 357 Angle V. Bowditch 454 Angus V. Angus 739 Anibal v. Hunter 573, 573, 765 Annett V. Kerr 94 Anonymous 573, 597, 638, 655, 701, 703 Ansell V. Robson 297 Anthony V. Hauey 396,444,451 Appleby v. Brown 291 Appleby v. Blkins 256, 539, 770, 776 Aranguren V. Scolfleld 368 Archbold v. Sweet 300 Archer v. Hudson 440 Argall v. Bryant 681 Arietta V. Morrisey 368, 340 Armitage V. Pulver 274 Armstrong v. Hall 110 Armstrong v. Lewis 676 Armstrong v. Stokes 689 Armstrong v. Toler 383 Arnold v. Bernard 373 Arnold V. Dimon 597 Arnold v. Hudson, etc 477, 478 Arnold V.Park 662,663 Arnold v. The Rock 520 Arthur v. Brooks. . 526, 533, 545, 603, 605, 765 Artie, etc., v. Austin 387 Ash V. Cook 100 Ashburner v. Balchen 485 Ashby V. National Bank 336 Ashby V. White 468 Ashley v. Marshall 564, 787 Aspinwall V. London, etc 691 Aspinwall v. Torrance 133, 393, 330 Astor v.Hoyt 474 Astor v. Miller 474 Atcheson v. Mallon 870 Atchison v. Ballon 349 Atherton V. Belden 901 Atkinson v. Collins 493 Atkinson v. Monks 356 Atkinson v. Nesbitt et al 887 Atlantic, etc., v. Johnson 667 TABLE OF CASES CITED. PAQE. Atocha V. G-arcia 353 Attorney-Greneral t. Manderson 898 Attorney-General V. Moor 373 Attorney-Greneral v. Partington 339 Attorney-General v. Poole 113 Attorney-General v. Salem U3 Attorney-G eneral v. Stowell 476 At water V. At water 394 Atwater v. Clancy 891, 903 Atwell V. Leroy 70, 73 A\ibrey v. Fiske 354, 683 Auburn, etc., V. Douglass 335, 460 Au burn Bank v. Leonard 393 Auchmuty v. Ham Ill, 394, 396 Audubon y. Excelsior, etc 673 Aurora City v. West 732 Austin V. Goodrich 857 Austin V. Hudson E. E. Co 449 Austin V. Eawdon 191, 193, 193, 363, 843 Austin V- Searing 97 Austin V. "Vandermark 403 A veri 11 v. Patterson 497 Averill v. Taylor, 379, 438, 533, 587, 631, 755, 797 Averill v. "Williams 453 Awde V. Dixon 698 Ayrault v. Chamberlain 606 Ayrault V. Green 403 Ayrault v. Pacific Bank 346, 389 Ayres v. Covill 606, 803, 813 Ayrea y. O'Farrell 633 Babbett v. Young 840, 844 Babcock V. Beman 293 Babcock V. L. S. &M. E. E. Co 856 Babcock V. Utter 317, 478, 479, 679 Bachelder V. Kske 438 Bachelder t. Low 668 Bachelor Y. Priest 383 Backhouse v. Benomi 449 Backman V. Jenks 676 Backus Y. Shipherd 344 Bacon Y. Townsend 370 Bacon v.Henchley 4fi8, 469 Badger y. Badger 682 Badger Y. Benedict 140,364 Bagar Y.King 323 Baggatt Y. Boulger 684, 745 Bagley y. Decker 71, 435, 426 Bagley v. Smith 384, 397, 403 Bagnall y. London, etc 387 Bagshaw V. Eastern, etc 109 Bailey y. Belmont 350 Bailey v. Easterly 758 Bailey Y. Hudson E. E. E. Co 858 Bailey Y. Inglee et al 80, 107 Bailey Y. Kay 833, 856 Bailey y. Lane 693 Bailey y. Eobson 353 Bailey Y. Eyder 563, 738, 787 Bailey y. Southwick 857 Baily v. Dennett 88 Baird Y. Gillett 391 Baker y. Chase 836 Baker Y. City of Utica 493 Baker Y. Higgins 304 Baker y. Hoag 433, 874 Baker T. Johnson 405, 676 Baker Y. Norton 101 Baker y. Plainer 344 Balcom Y. Woodruff 833, 836 Balde y. Smith 663 Baldwin Y. City of Oswego 493 Baldwin y. Kimmel. .- 371 Baldwin y. Lawrence 83 Baldwin Y. Munn 405, 566 Baldwin y. United Telegraph Co.. 606, 700 Baley Y. Buckland 300 Ball Y. Bullard 64, 60 Ball Y. Gardner 46,3 Ball Y. Loomis 453 PAGE. Ball Y. Matthews 685 Ball Y. Newton 486 Ball Y. Nye 386 Ballard v. Burggett 457 Baltimore, etc., y. Fitzpatrick 870 Baltimore, etc., y. State 882 Bancroft Y. Warden 468 Bank, etc., Y. City 442 Bank y. Davis 394 Bank Y. Huntington 363 Bank, etc., y. Union Bank : 467 Bank of British North America y. Suy- dam 81, 114, 140, 142 Bank of Commonwealth y. Mayor, etc., 441 Bank of Cooperstown Y. Corlies .533 Bank of GeneYa y. Guliok 176, 177, 178 Bank of Geneva y. Eeynolds 831 Bank of Kingstt n y. Chester 438 Bank of Havana y. Magee 96 Bank of Toronto y. Hunter . . . 699, 610, 611 Bankart Y. Tennant 497 Banks v. Burns 697 Banks Y. Gibson 341 Bannatyne y. Barrington 436 Banta Y. Marcellus 103 Banyerv. Empie 326, 337 Barbery. Hubbard 351 Barber Y. Lesiter 338 Barber y. Morgan 370 Barclay Y. Q uioksilver, etc 865 Barger Y. Durvin 681 Barker v. Cassidy 630, 874 Barker Y. Loomis 95, 311 Barker v. Eussel 353 Barlow v. Barlow 324 Barlow Y. Scott 140, 843 Barnard T. Gushing 410, 693 Barnard Y. Heydrick 58 Barnard Y. Monnot 304, 305 Barne Y. Madden 317 Barnes y. Allen 347 Barnes Y. Harris 308, 363 Barnes Y. Moore 686 Barnes v. Perine 836 Barnes y. Smith Ill Barnes Y. Underwood 330 BaxnesY.Wend 346 Barney Y. Dewey 473 Barney Y. Loper 465 BarneyY. Worthington 193 BarnumY. Gains 238 Barnum Y. Van Dusen 448 Barrett v. Long 367 Barrett Y. Third Av., etc 744 Barrett v. Warren 316,458 Bartholomew y. Jackson 491 Bartlett v. Hoppock 470 Bartley v. Hichtmyer 400, 425, 436 Barton y. Hermance 486 Barton v. Sackett et al 605, 796 Basebe v. Matthews 370 Bass Y. Comstock 223, 264, 374, 753 Bass Y. Pierce 75, 301 BassettY. Bassett 683 Bassett v. Brown 669, 700 Bate v. Graham 86,128, 83-4, 843 Bates Y. Fellows 288 Bates v. New Orleans, etc 741 Bates Y. Eosekraus 191, 617, 688, 699 Bates v. Voorhies 830 Batterbury v. Vyse 487 Batterman v. Finn 365 Batterman v. Pierce 626, 627, 694 Battle V. Thompson 640 Bauman v. New York Central E.E. Co., 795 Baxter v. Arnold 158 Baxter V. Second, etc 385 Baxter v. Smack 344 Beach v. Bay State Co 804 Beaohv.Cobk 41^ TABLE OF CASES CITED. XI PAGE. Beach v. Gallup 517, 535 Beach T. Gregory 100 Beach v. Smith 690 Beadlesv. Burch 113 Beakv. Beak 675 Bealev.Hayes 275,278, 756 Beals v. Cameron 727 Bean v. Jones 168 Bean v. Pai'ker 463 Beardsley, etc., v. Foster 81, 128, 318 Beardsley V. Boot 382 Beardsley v. Stover 619, 825, 826 Beaty t. Swartout 662, 563 Beohervaise v. Lewis 633, 699 Beck T. Stephani 285 Becker v. Great Eastern, etc 408 Becker V. Lament 293 Beckwith v. XJniou Bank 623 Bedell V. Hoffman 355, 356 Bedell v. Powell 497 Bedell v. Stickels 340, 722, 784 Bedford t. Terhune 416, 833 Beebev. Bank 366 Beebe v. Griffln 236, 400 Beebev.Moore 169 Beech v. Gallup 173, 777 Beecher v. Ackerman 310, 408 Beekmau y. Cutler 719, 721 Beekman v. Platner 199, 305, 368 Beers v. Waterbury 633 Belden T. Meeker 233, 398 Belknap T. National, etc 334 Belknap v. Seeley 274, 787 Belknap y. Trimble 108 Bell V. Dunmore 289 Bellinger v. Craigue 515 Bellinger v. Kitts 702 Bellinger v. New York C. E. B. Co 477 Bellows v. LoYell 698 Bellows Y. Sackett 365, 451 Bellows V. Shannon 786 Beman v. Tugnot 208 Bemis v. Bronson 825 Bemus v. Beekman 100 Bender V. Comstook 159 Bendit v. Annesley 690 Benditson v. French 354 Benedict v. Beebe 491 Benedict v. Howard 441 Benedict ¥. Seymour 149, 264, 265, 508 5U, 548, 554, 583, 607, 608, 812 Benjamin v. Taylor llO, 143 Benkard Y. Babcock 694, 695 Bennett T. Abrams 433,434 Bennett v. Brown 463 Bennett y. Cook 683 Bennett T.Judson 193, 195 Bennett Y. Lake 837, 839, 830, 836 Bennett Y. Smith 347 Bennett Y. Vade 113 Bennett v. Walker 564 Benomi y. Backhouse 449 Benson Y. Berry 453 Benson y. Monroe 466, 467 Benson V. Paine 122 Bent Y. Bent 661 Bentley V. Jones 370,794 BentleyY.Smith 414, 435, 746 Benton Y. Pratt 337, 738 Berdan Y. Sedgwick 71 Bergen Y. Stewart 464 Bergen v. Wemple 489 Berkshire Co. y. Walcott 843 Berlin Y.Hall 361 Bernard Y. Wilcox 146 Berrian y. Mayor 663 Berry y. Hemmingway 338, 350 Berry v. Morse 664 Best V. Bauder 676 Betta V. Gibbons 293 PAGE. Betts V. Hillman 340 Bettinger y. Bridenbecker 863 Betz V. Betz 388 Beusel y. Lynch 666 Beyery.Marks 431,435 Bibb V. Pope 371 Bidwell V. Cotton 668 Bigelow Y. Ayrault 317 Bigelow Y. Dunn 829 Bigelow's Bx'r v. Bigelow 671 Bigge V. Parkinson 471, 473 Bildersee y. Aden 463, 705 Bingham Y. EatclifC 291 Bininger y. Wattles 447 Birbeck V. Stafford 70, 299 Birdseye Y. Frost 47 Birdseye Y. Smith 150 Bisby Y.Shaw 573 Bishop T. Bishop 497, 773 Bishop Y. Bdmiston Ill, 497, 777 Bixby Y. Moore 870 Bixbyy. Wood 72, 192, 221 Black Y. Ottoman Bank 897 Blackburn v. Gregson 366 Blackmar Y. Thomas 3, 12 fllackstock Y. New York, etc 676 Blagrave Y. Bristol, etc.... 331,338, 339, 450 Blaidsdell y. Eaymond 310, 601 Blaisdell Y. Portsmouth, etc 873 BlaiuY. Agar 108 Blake v. City of Brooklyn 443 Blake Y. Bldred 516,526 Blake v. Michigan, etc 313 Blanchard Y. Ely 112, 404 Blanchard y. Strait 199, 609 BlaudY. Swafford 482 Blatchford Y. Boss 314 Blattmacher v. Saal 854 Blest Y.Brown 699 Bliss Y. Bliss 675 Bliss Y. Cottle 323 Bliven v. Hudson E. E. E. Co 308, 666 Blodget V. Blodget 100 Bloodworth y. Gray 892 Blossom Y. Barrett 144, 484, 749, 771 Blossom Y. Barry 389 Blowers Y. Sturteyant 347 Bloxam y. Warner 302 Blunt Y. Aiken 365 Board of Comm'rs Y. Vanderbilt 687 Board, etc., T. Brie, etc 393, 449 Board, etc., Y. White 369 Boddy Y.Kent 103 Bogardus v. Parker. ... 133, 141, 237, 610, 635 Bogardus v. Eichtmyer 690 Bogert Y. Bogert 400 Bolinbroke V. Kerr 329 BollesY. Duff 413 Bolton V. Prentice 347 Bonar V. McDonald 440 Boniface Y. Eelyea 373 Bond V. Mitchell 216 Bond Y. Patterson 179 Bond Y. Willett 453 Boosey Y. Wood 678 Boot Y. Bentley 393 Boothby V. Plaisted 870 Boothbyy. Scales 694 Borrowman Y. Eossel 684 Bos Y. Seaman 94 Boston, etc., Y. Shauly 879 Boston, The 260 Bostwioky. Abbott 673 Boucicault Y. Wood 314 Boughton Y. Smith 71 Boulter v. Arnott 343 Bouton Y. City of Brooklyn .... 81, 87, 748 Bowditch Y. Green 439 Bowen V. Boweu 398, 489 Boweny. Eyans 338 Xll TABLE OJ? CASES CITED. pAais. Bowen V. Fenner 75,301, 4fil Bowen V. Kerwan 3:i5 Bowers v. Bradley 076 Bowers v. Brower 313, 4H1 Bowers V. Smith 313, 481 Bowie V. Brahe 337 Bowlier V. Childs 663 Bowman v. Tallman. . . 399, 300, 338, 464, 665 BowneT. Joy 497 Bowne y. Miller 316 Bowyer v. Priohard 357 Boyce v. Brockway 453 Boyoe y. Browa. ... 38, 163, ai.",, 366, 367, 506 601, 607, 735, 758 Boyes v. Tiedman 143, 144 Boylen v. MoAvoy 58 Boynton v. Kellogg 564 Bracebridge y. Buckley 394 Bracklin V. Fonda 47 Bracy y. Kibble 436 Bradbee y. Mayor, etc 869,880, 899 Bradbury v. Morgau 344, 675 Bradley V. Aldrich 661, 843 Bradley y. Bunipace 307 Bradley v. Wheeler 405 Bradner y. Falkner 454 Bradshaw v. Beard 348 Bradshaw v. Sultan 893 Brady y. Bissell 73 Brady v Hennlon 337 Brady v. Mayor 443 lirady y. Weeks 86^141,143 Brady y. MoKosker 750, 751, 753 Bragg y. Biokf ord 283 Braman v. Johnson 24, 737 Branchl v. Nash 424 Brand y. Schenectady & Troy B,. B. Co., 730 Branding y. Ord 564 Brandreth y. lance 407 Brazil y. Isliam 564 Breese v. United States Tel. Co 683 Brennau y. Half 421 Brennan v. Perry 305 Brenty V.Todd 893 Brett V. First, etc 861, 893 Bretz y. Mayor 308 Brewery. Temple 141 Brewster v. Silence 135 Brewster v. Van Ness 322 Brickett y. Davis 306 Bridenbecker y. Hoard 97, 376 Bridge v. Paysan.. 118, 270, 599, 607, 714, 799 Bridger v. Pierson 473 Briggs y. French 408 Briggs V. Eowe 305 Briggs V. Vase 630 Brigham v. Bush 454 Bright V. Currie 816 Brightly v. Norton 410 Brinkerhoff y. Brown 107, 114 Brinckerhoff y. Olp 703 Brinsmead v. Harrison 673, 744 Bristol V. Eens. & Saratoga K. B. Co. . . 164 314, 764, 774, 786 Brittain y. Inhabitant 880 Brittonv. Lloyd 383 Britton v. Frink 408 Broadbent v. Ramsbotham 477 Brobsty. Brock 413 Brookaway v. Burnap 309 Brockett v. Bush 303 Bromflelcl v. Jones 193 Bronson v. Wiman 330, 703 Brook v. Hook 899 Broolces v. Dean 393 Brooklyn Central E. R. Co. v. Brooklyn City K. E. Co 443 Brooklyn City E. R. Co. v. Coney Island, etc 4-43 Brookmau v. Metoalf 368 PAGE Broome v.Beardsley 388, 0.56 Broome V. Peck 81,83, 84 Brooks V. Bemia .5.53 BrooliS V. Curtis 880 Broolier,y(jn v. Con.s;dus 103 Brown y. The Accrington, etc 374 Brown v. Ackroyd 348 Brown v. Jiabcock 833, 834, 825, 839 Brown y. Bachelor 343 Brown v. Birdsall 118 Brown v. Boven 480 Brown v. Brown 140, 326, 349, 070 Brown v. Butler 337 Brown v. Colie 180, 301, 570, 835 Brown v. Cooper 696 Brown v. Culnon 304 Brown V. Eaton 161 Brown v. Edginton 903 Brown V. Feeter 455, 458 Brown v. Ferguson 090, 701 Brown V. Higden .564,565 Brown v. Jenniaon 647, 6.51, 0.53 Brown v. Johnson 403 Brown v. Lakeman 370 Brown V. Leigh 8.57 Brown v. McOune 351, 731, 834 Brown v. McGraw" 313 Brown v. Mclntyre 370 Brown v. Mallett 319, .387 Brown V. Nichols 103 Brown V. Orvis 574, 575, .581 Brown y. Parker 875 Brown y. Peabody 451 Brown v. Peniield 75 Brown v, Richardson 388, .565, 659 Brown y. Saratoga E. E. Co 778, 819 Brown v. Weber 674 Brown v. Willington 444 Brownson V. Giffbrd 114, 745 Bruce V. Davenport 454, 009 Bruen v. Hone 391 Bruckerv. Fromont 331 Bruffy.Mali 110 Brush v. Blanchard 398, 489 Bryan V. Heck 393 Brushy Kohn 701 Bryan v. Knickerbocker 411 Bryant v . American Tel. Co 330 Bryant y. Bryant 572,840 Bryant V. Flight 80 Brynier V. Buchanan 357 Bryson V. Whitehead 363 Bubb V. Telyerton 476 Buchanan v. Paddleford 663 Buck y. Amidan 293 Buck v. Lockport 878 Buck V. Eemsen 75, 301 Buckingham v. Payne 390 Buck m aster V. Thomson 439 Bucknam v. Brett 146, 564 Budd V. Bingham 143 Buddington V. Davis.... 40, 163, 573, 681, 598 603, 811 Buel v. Boughton 380 Buelv.Cole 403 Buel y. Dewey 601 Buffalo, etc., v. Howard 438 Buffalo, etc., v. Johnson 497 Buffalo, etc.,y. Lampsan 310 Buhler V. Wentworth 573, 597, 603 Bulen V. Buvdell 400, 831 Bullard v. Rayner 71, 383 Bundy V. Birdsall 414 Bundy v. Hyde 398, 399 Bungev.Keep 003, 830 Bunnell v. Greathead 504, 507 Burdick v. Garrick 083 Burdick v. Washburn 364 Burgess v. Abbott 499, 601, 062 Burgess v. Burgess 445, 446 TABLE OF CASES CITED. XUl PAGE. Burgess v. Carpenter 3Y6 Burgess v. Eve 675 Burget y. Bissell 35, 247, .594 Burgett V. O'Reagan 343 Burgh T. Legga 566 Burghart v. Golden 300 Burghart V. Eice 316 Burkwell y. O'Keef 323 Burk V. Phillips 400 Burke y. Broadway, etc., E. R. Co 240 Burke V. Wills 423 Burkholder's Ex. v. Plank 884 Burkle y. Luce 69 Burkwell y. O'Keef 323 Burlock y. Peek 317 Burn y. Morris 455, 458 Burnap y. Babcock 833 Burnam v. Butler 390 Burnby y. Bollett 471 Burner y. Perrine 437 Burnett V. Gwynne 75 Burnham y. DeBoise 754, 774, 787 Burnham y. Onderdonii 238 Burnham y. Seayerns 371 Burnham y. Webster 303, 363 Burns v. Erben 331, 333, 369 Burns V. O'Hourke 360 Burry. Miles 478, 479 Burr V. Wright 762 Burrall v. DeGroot 520 Burrall y. Moore 819, 821 BurriU y. Watertown, etc 335 Burrow y. Humphreys 483 Burrows y. March 341 Burrows v. Miller 744 Burt y. British, etc 844 Burt V. Burt 313 Burty.Dewey 473 Burt V.Horner 344 Burt V. Place 370 Burtien v. Rutherford 874 Burtis V. Thomson 179 Bush v.Lyon 301 Busby y. Conoway 349, 350, 668 Bush V. Prosser, 550,551,573,574,576,578, 586 606 Bush V. Tilley 839 Bush y. Treadwell 792 Bush V. Woodward 326 Buswell V. Pioneers 662, 687, 688 Butchers' Banlc v. Jacobson 172 Butler V. Qalletti 353 Butler V.Lee 40 Butler V. Livermore 193 Butler V. Mason 206, 355, 754 Butler y. Mulvihill 872 Butler V. New York, etc., H. R. Co. . 68, 70 Butler v. Kawson 127 Butler v. Tucker 486 Butler V. Wentworth 572, 581 Butler y. Wood 213, 733, 755, 763 Butler's Case 410 Butterfleld v. Ashley 398 Butterworth v. Crawford 478 Butterworth V. Gould 380,381 Button V. McAulay 345, 567 Butts V. Burnett 457 Butts y. Eosekrans 804 Butts y. Genuiig 114, 119 Butts V.Wood 109 Byrne V. Eomaine 434 Cabot V. Haskins 168 Cabot Bank v. Morton 470 Cady V. Potter 693 Cady v. Sheldon 344 Cahill V. Palmer 184, 187 Gaboon v. Bank of Utica, 26, 140, 147, 263, 790 Oaine v. Coulton 690 Calanan v. McClure 680 PAGE. Caldwell v. Raymond 367 Calkins v. Atkinson 141 Callendar v. Howard 615 Callisherv. Bisuhoffsheim 168,668 Camden y. Doremus 633 Camden Bank v. Eodgers 73 Cameron v. Young 103, 107 Camfleld v. Fairbanks 866 Campbell v. Burch 68, 333, 398 Campbell v. Carter 347 Campbell y. Consalus 310, 787 Campbell v. Foster 411 Campbell v. Genet 630 Campbell V. Hoyt 703 Campbell y. McCoy 479 Campbell v. Wenlock 364 Campbell V. White 683 Campbell v. Woodworth 4'72 Campbell v. Wright 141, 191 Cararoys v. Scurr 303 Canal v. Clark 446 Canal Bank v. Bank of Albany.... 878, 380 Candee y . Deere 447 Canaeld v. Ford Ill Cannon v. Grantham 869 Canoyer y. Cooper 399 Cantine v. Clark 453 Cardell v. McNiel 344 Carew y. Rutherford 670 Carey V. Berkshire, etc SOt Carey y. Cincinnati, etc 436 Carhart v. Auburn Express, etc 4'78 Carhartv. French 480 Carleton v. Franconia, etc 386 Carley v. Wilkins 775, 787 Carlyle V. Southeastern Railway 83 Carman v. Plass 136 Carman v. Pultz 702, 703 Carman v. Townsend 361 Carman v. Trude 4'73 Carpenter v. Bell 254, 565, 653, 686 Carpenter v. Halsey 450 Carpenter v. Minturn 858, 875 Carpenter v. Oswego, etc 409, 443 Carpenter v. Ottley 588, 631 Carpenterv. Stevens 69, 694: Carpenter v. West. . 25, 241, 247, 248, 249, 590 Carrington y. Crocker 89, 673, 683, 7.57 Carroll y. Cone 323 Carron, etc., v. Hunter 481 Carter v. Hammett 416 Carter v. Hope 620 Carter v. Kingman 333 Carter v. Koezley 209 Carterv. Roberts 437 Carter y. Simpson 864 Carterv. Towne 386 Carterv. Williams 352 Caruthers V. Bolls 454 Carver V. Creque 71 Gary v. Hotaling 459 Case V. Abeel 146 Case V.Carroll 269 Cassin v. Delany 346 Castle V. Duryea 387 Castle y. Noyes 293 Castle V. Playford 465 Castle v. Wilkinson 435 Caswell V. Bushnell E42, 648 Caswell V. Davis 445 Catlin V. Gunter 510, 511, 517, 526, 554 558, 562, 842, 844, 846 Catlin T. Hansen 562, 839 Caussidere v. Beers 214, 314, 340 Cavil! V. Prince 669 Cayuga County Bankv. Warden... 829, 834 Cazet V. Hubbell 100 Cemetery Board v. Teller 159, 161 Central Bank v. Pindar 191, 459, 669, 700 Chadwick V. Booth 266 XIV TABLE OP CASES CITED. PAGE. Chadwiok v. Lamb 301, 675 Chalmer v. Shackle 57(1 Chamberlain y. Morgan IH;") Chambers v. Miller 4()1 Champlain v. Brown 4:J5 Champlain v. Railway, etc 8y:3 Champlain V. Valentine 337 Champlin v. Parish 555 Chancellor V. Baldwin 441 Chandler V. Johnson 670 Channon v. Lusk 443 Chapin V. Shaler 870 Chaplain v. Dietz 160 Chapman v. Chapman 299, 516, 526, 633 Chapman v. G-ates 404 Chapman V. Palmer 517 Chapman V. Robertson 716 Chapman v. Robinson 618 Chapman v. Webb 824, 829 Chappell V. Bissell 177 Chappel V. Durston 715 Charlwood v. Greig 295 Chase v. Burnside 513 Chase v. Cochran 8f>4 Chase v. Ewing 664 Chase V. PI amilton, etc 684 Chase v. Hatch 676 Chase V. Peck 317 Chaseman y. Richards i 478 Cheesebrough t. N. T. & Brie R. R. Co. 172 Cheesman v. Sturges 288, 832 Cheever V. Wilson 371 Cheney v. Beals 339 Cheney v. Garbutt 251, 253 Cherry v. McDougal 29.?, 320 Cherry v. Munro 114, 468 Cheshire R. R. Co. v. Foster 900 Chester v. Bank 438 Chicago V. Robbins 345, 346 Child V. Brace 318 Childers v. Wooler 300, 452 Childs V. Barnum 168 Chilton V. Braiden 366 Christianson v. Linlord 377, 414, 670 Christie y. Corbett 309, 842 Christie y. Herrlck 80, 114, 116 Christy y. Libby 667 Chubuck y. Vernam 291 Churchill y. Churchill 150, 267 Churchill y. Hunt 303 City Bank v. Bangs 357, 422 City Bank V. Perkins 75 City o£ Buffalo y. HoIIoway 218 City of Memphis y. Brovyn 668 City of Philadelphia y. Collins 396 City of Rochester y. Eriokson 686 Clafliny. Ball 463 Clapp y. Grayes 316, 362 Clapp y. Schutt 70 Clapper y. Fitzgerald 641 Clark V. Atkinson 206 Clark y. Oleyeland 370 Clark y. Crego 330, 774 Clark y. Crandall 566, 703 Clark T. Fitch 435, 426 Clark y. Gilbert 490 Clark y. Hallock 455 Clark y. Harwood 29, 49, 243 Clark V. Hoi dridge 71 Clark y. Hughes 670 Clark y. Merchants' Bank 467, 843 Clark y. Miller -JIIS Clark V. Underwood 338 Clark V. Van Duzen 730 Clark y. West 310 Clarke y. Angier 330 Clarke y. City of Lockport ,387 Clarke v. Clarke 335, 352, 497, 565, 771 Clarke y. Crandall 181 Clarke y. Cunningham 476 103 683 739 687 421 613, 715, 8.30 0, 563, 663, 684 PAGE. Clarke v. Freeman 446 Clarke y. Meigs 703 Clason y. Corley Clay V.Oxford Clem y. Newcastle, etc Gierke v. Child Cleveland v. Eurrill . . . Cleveland v. Spier Cliftv. Collins Clinton y. Brown Clinton V. Eddy Clothier y. Webster Clough V. Hoffman Clough v. MuiTay Cloyes V. Thayer 5.^9 Clute y. Boal 411, .531 Coakley v. Chamberlain 372 Coan v. Osgood -W? Coats v. Barby 453 Cobb v. Dows 143, 381 Cobb V. Dunkin 161 Cobb V. Frazee 607, 723, 734, 735, 760 Cobb v. Hatfield 669, 700 Cobb V. Harmon 676 Cobb V. Thornton 333 Cochran V. Webb 26 Cochran y. Dinsmore 8.56 Cock y. Coxwell .566 Cocker v. Cowper 479 Cockle y. L. & S. E. Ry 386 Cockrill v. Sparkes 681 Cocks v. Radford 831, 832 Codd V. Eathbone 96 Cofan y. Reynolds 773 Coggs V. Bernard 303 Coghlanv. Dinsmore 331 Coitv.Beard 672 Coit y. Braunsdorf 416 Coitv.Coit 41, 601 Coit v. McReynolds 316 Coit V. Planer 416, 417 Coit y. Stewart 633 Colburn y. Woodworth 485 Colchester v. Brooks 393 Colclough y. Bayse 481 Colclough y. Evans 289 Cole v. Clark 458 Cole v. Fisher 396 Cole v. Jessup 260, 392 Cole V. Reynolds 40,111, 403 Cole y. Sims 317 Colegrave v. Breed 101 Colegrave v. Tallman 441 Coleman y. Bean 463, 674 Coles V. Bowne 555 Coles v. Park 343 Colie y. Tift 791 Collins V. Buehnell 534 CoUins y. Coghill 350,684, r.l Collins V. Collins 859 Collins V. Evans 8Si Collins v. Lemasters 402 CoUinsv. Swan 541,653,725 Collins V. Vanderbilt 487 Collyer v. Collins 428, 493 Colt y. Kemp 630 Colt v. Lasnier 80 Colton V. Jones 240, 264, 448, 749, 753 Colton V. Ross 275 Colvin v. Burnet 479, 480 Colwell v. New York & E. R. R. Co 138 Combs V. Bateman 168, 668 Comegys v. Vassee 67. 68 Commercial, etc., v. Varnum 887 Commercial Bank v. City of Rochester, 184 466, 467 Commercial Banlv v. Norton 169 Commercial Bank v. Stewart 564 Commex'cial Bank v. Ten Eyok 501 Commercial Bank y. Union Bank 690 TABLE OF CASES CITED. XV PAGE. Commissioners v. Loughnan 664 Commissioners v. Pilots 393 Commissioners v. Vanderbilt 393 Commonwealth v. Murray 400 Corapton V. Greene 621, 639 ComMook V. Hallock 714, 725 Conaughty V. Nichols 193, 251, 253, 843 Conde y. Nelson et al 123 Conde v. Shepard 133 Conflans, etc., y. Parker 368 Conger y. Johnson 811 Conger y. Van Aernum 398, 399, 488 Congregation, etc., y. Halliday 405 Congress, etc., y. High Rock, etc 446 Conklin y. Conklin 400 Conklin y. Field 191,379 Conklin v. Furman 683 Conklingy. Gaiidall 173, 174, 175, 177 Conkling y. King 663 Conklin y. Thompson 390 Conklin y. Vanderyoort 546,648 Conley y. Palmer 139 Connah y. Hale 453, 458 Connayan y. Conklin 365 Connecticut Mut. Ins. Co. y. Cleyeland etc., K. E. Co 168 Connor y. Williams 407 Connoss y. Meir 798 Connoughty V. Nichols 160 Conro y. Port Henry Iron Co 85 Considine y. Consiaine 874 Cook y. Barnes 191 Cooky. Claysn-orth 360 Cook V. Cook 429 Cook y. Ferrall 394 Cookv.Hopper 299 Cook V. Kelley 406, 445, 703 Cook y. Litchfield 744 Cook y. Nathan 344, 377 Cook y. Hawdon 58 Cooky.Eitter 399 Cook y. Warring 385,448 Cooke T. 438 Cookhay y. Woodward 395 Cookiugham y. Lasher 661 Coolidge y. Paris 54 Coony. Reed 424 Coope V. Bowles 236 Cooper V. Chitty 455 Cooper y. Clason 733 Cooper y. Barber 676 Cooper y. Hunchin 347 Cooper y. Newland 233 Coopery. Phibbs 379 Cope y. Rowlands 676 Copley y. Rose 453 Coppin y. Coppin 366 Corbin v. George 364 Cordier y. Cordier 288 Corn Ex. Bank y. Babcook 371 Cornell y. Dakin 563,656 Cornell y. Prescott 468 Cornes y. Minot 337 Corning y. Corning.... 274, 586, 786, 788, 829 833 Corning y. Greene 97 Corning y. Haight 534, 570 Corning y. Lewis 371,373 Corning v. Smith 235 Corning y. Troy, etc 353, 479 Cornish y. Gest 401 Cornwell y. Met. etc 384 Corporation, etc., y. Attorney-General, 395 Corrigan y. Union, etc 375,451 Corwin v. Corwin 515, 534, 563 Corwin y. Daly 447 Corwin y. Freeland 251 Coi-y y. Cory 360 Cory y. Long 403 Coster V. Isaacs 373 Coster y. Mayor, etc Costigan v. Mohawk Cotes y. Smith Cotreal y . Talmadge 800, Cott y. Lewiston Couch y. Delaplaine 67, Coulinn y. CoXe Coulter's Case '. Coupal y. Young Coursen y. Hamlin Courtney y. Baker Courtney y. Doyle Cousins y. Paddon Coustan V. Chapman 425, Coyert y. Gray 223, Cowden y. Wright Cowdry y. Carpenter Cowel y. Sikes Cowenhoyeny. City of Brooklyn ..327, Cowley y. Poulton Cox y. Burbridge Coxy. Clift Cox y. Robinson Coxy. Smith 236, 338, Coykendall y. Eattm Cozine y. Graham Craig y. Parkis Craig y. Rochester 409, Craig y. Ward 88,118, Craig V. Wells Crain y. Petrie 337, Cram y. Dresser Cramer y. Benton Crandall y. Beach Crane y. Sawyer Crary y. Goodman 24, 25, 26, 630, Crary y. Smith Craw V. Eichinger Crawford y. The William Penn Creed y. Hartman Cremer y. Higginson Crippen y. Hudson Crippen y. Morss 898, Crocker v. Marine, etc Crockpay y. Martin Croft y. Day Crofts y. Allman Croghany. Liyingston 58, Cromwell y. Hewett 135, Crooke y. Andrews 310, Crooks y. Moore Cropper y. Cook Cropsey y . Sweeney Crosby y. Wood 168, Cross y. Beard Crouch y. Parker Crowe y. Aiken Crowfoot y. London, etc Crowhurst y. Layerach Crowthers y. Ramsbottom CrutwellY. Lye Cruyt y. Phillips Cudlipp y. Whipple Cuff y. Dorland 273, CuUen y, Toles Cumberland, etc., y. Hoffman, etc Cummins v. Barkalow Cummings y. Barrett Cummings y. Brown 427, Cummings y. Morris 75, Cummings y. Vorce Currie y. Baldwin Currie y. White 404, 685, Curtis V. Brook Curtis y . Bryan 445, 447, Curtis y. Fay Curtis y. Fox 843, Curtis y. Leayitt Curtis y. Rochester, etc., R. R. Co Curtis y. Tyler 449 485 357 844 477 70 482 616 876 631 482 169 424 903 397 398 349 441 450 103 296 442 701 483 354 555 344 443 193 479 738 637 693 157 238 791 532 441 138 903 792 701 446 112 235 328 443 342 319 484 668 324 320 314 488 436 677 341 462 204 697 514 362 563 480 683 620 215 778 701 470 704 427 845 383 320 438 XVI TABLE OF OASES CITED. PAGE. Cushingham v. Phillips 200 Cushman V. Gori. 305 Cusson V. Whallon 819, 820 Custis V. Hasten 436 Cutler T. Wright 778 Cutting v. Seabury 223, 397 Cuyler v. Bogert 540 Cuyler v. Coates 835 Cythe V. Lafouutain 564,588 Dabney v. Greely 773 Dain v. Wyckoff 425 Dakin v. Dunning 701 Dalby y. PuUen 435 Dalton V. Bethleham 489 Daly y. Palmer 314 Dane V. Mallory 864 Daniels v. Atlantic, etc 490 Dann v. Baker 288 Dansville, etc., V. "Welch 437 Danvers v. Dorrity 400 Darlington v. Mayor, etc 563 Darlington V. Painter 478 Darnell v. Morehouse 662, 687 Darnell v. Thomas 688 Darraw v. Miller 647, 650, 651, 652, 726 Dauchy V, Bennett 412 Dauchy V. Silliman 308 Dauel V. Spence 843 Dayayne v. Noble J22 Davenport v. Buckman 387 Davenport y. Simpson 483 Davis V. Grove 402 Davidson v. Nichols 391 Davies v. Davies 670 Davies v. Dodd 369 Davies v. Jenkins 299, 453 Davies v. Skidmore 103 Davies V. Snead 696 Davis V. Bemis 467 Davis V. Duffle 99, 412 Davis V. Duke, etc 408, 474 Davis V. Garr 828, 833 Davis V. Goodenow 398, 489 Davis V. Grove 403 Davis V. Hedges 695 Davis V. London, etc 880 Davis V. Lovell 482 Davis V. Mapes 530 Davis V. Mayor, etc 88, 443 Davis V. Morris 141, 274, 416 Davis V. Muncey 479 Davis V. Munson 418 Davis V. Newkirk 453 Davis V. O'Hara 303 Davis V. Parker 434 Davis V. Peck 403 Davis V. Potter 281, 536, 646, 649 Davis V, Schermerhorn 837, 829 Davis V. Shepherd 433 Davis V. Spencer 54, 93 Davis V. Talcott 319 Davis V. Thomas 439 Davison v. Powell 155 Davpkins v. Sappington 433 Dawkins v. Pawlet 678 Dawson v. Chalineley 871 Dawson v. Chamney 354 Dawson y. McDonald 697 Day v. Bassett 333 Day v. Leman 3g^ Day V. Pool 891 Deacon v. Gridley 169 De A greda v. Mantel 131 133 Dean V. Bldridge 361 Dean v. Taylor 665 Deare V. Soulten 317 Deas V. Short 43g Debaix V. Lehind 209, 8;!!! Decker V. Anderson 464 PAGE. Decker v. Hassell 485 Decker V. Morton 670 De Cormas V. Prost 858 Dederick V. Hoysradt 636 Deflganerie V. Young 427 De Forest v. Baker 648, 653, 654, 705 Degg V. Midland 375 De Graw v. Elmore 877 De La Croix v. Bulkley 380 Delafleld v. De Graw 425, 626 Delatleld V. Kinney 96 Delamater v. Bush 867 Delancey v. Ganong 335, 461 Delano v. Rawson 623 Delaplaine v. Bergen 100 Delavan V. Duncan 894 Delaware Bank v. Jarvis 470 Delaware, etc., v. Torrey 903 Delazillo v. Levy 618 Deraainville V. Mann 416 Demarest V. Williard 67 Demattos v. Gibson 871 Deming V. Chapman 353 Demingv.Keep 630 Deny. Johnson 325 Denham V. Stilwell 749 Denman V. Prince 477, 832 Dennehey v. Woodsum 370 Dennis v. LeClerc 314 Dennis v. Ryan 876 Dennis V. Snell 242, 330, 563, 671 Dennison v. Dennison 512, 545 Dennyv. Hancock 697 Denton V. Peters 526 Denunon V. President, etc 692 Depew V. Keyser 424 DePolv. Solke 353 Depuyv. Strong 745, 771 Depuyster v. Wheeler 844 De Bidder V. Sohemerhorn.... 122, 125, 145 DeBoo V. Foster 351 Desarts V. Leggett 368, 703 Deshan v. Porter 479 Desmond V. Bice 368 DeEspinosav. Gregory 862 Devendorf v. Beardsley 564 Devlin v. Bevins 713 Devlin v. Brady 349 Dewey v. Burdwell 450, 704 Dewey V. Field 291 Dewey v.Hoag 208, 638 De Witt v. Buchanan 730, 736 De Witt V. Chandler 97 De Witt V. Swift 766, 766, 767 De Witt V. Walton 292 De Wolf V. Eebaud 500 Dexheimer v. Gautier 843 Dexter v. Broat 673, 702 Dexter v. Clark 673 Dexter v. Norton 094 Diefendorff v. Gage btM Dielendorl v. Trustees, etc 4:37 Diblee v. Corbett 1S7, 446 Dickens v. New York Cent. R. R. Co. .. 150 Dickinson v. Winchester 399 Dickson V. Kimball 524 Dickson v. McCoy 396, 390 Dieuny V. Hancock 379 Digby V. Fitzherbert 222 Dillaye v. Wilson 126, l;U Dillon V. Anderson 698 Dimes v. Grand, etc 4S8 Dimon, The 261 Dininny v. Fav 70 Dinining v. New York, etc., B. B. Co.. . 888 Directors v. Kis.-h 684 Diabrow v. FolLirr 400 Disbrow v. Ten lirocck 303 Dishard v. Wiilliriilge 631 Ditchburn v. Sprackliu 146 TABLE OF CASES CITED. XVll PAGE. DiTine Pastoria, The 260, 261 Dixon V. Bell 386 Dixon T. Buck 473 Dixon, etc., v. Guggenheimer 446 Dixon V. Nuttal 321 Dobell V. Stevens aS7 Dobson Y. Pearoe 58T, 588, 631 Dodge V. Ourry 788,793 Dodge V. Favre 399 Dodge V. National, etc 334 Dodge V. New York, etc 663 Dodge V. "Woolsey 109 Doe T. Butcher 347 Doelner v. Tynan 395 Dole V. Manley ' 158 Doloher v. Fry 170, 360, 668 Dolevln v. Wilder 573, 575, 576, 679, 771 Dollner v. Gibson. . 184, 185, 186, 194, 195, 222 Doloret v. Bothsohlld 429 Dolphen y. Aylward 373 Dolsen V. Arnold 663 Donahue V. Henry 457 Donovan v. Finn 411 Doolittle v. Dinlnny 461, 463 Doolittle V. Supervisors 442, 443 Doremus v. Lewis 801 Dorlin v. City of Brooklyn 387 Dorman v. Kellam 161, 155, 264, 753 Dorman V. Long 811 Dorn V. Fox . .- 897 Dorr V. Harrahan 362 Dorwin v. Potter 695 Doty V. Wilson 663 Dougan v. Champlain, etc 873 Dougherty v. Bunting 345 Doughty V. Devlin 365, 767 Douglass V. Rowland 166, 168, 673 Douglass V. Patrick 702 Dovan v. Dinsmore 516, 605 Downes v. Phoenix Bank 322, 661 Downs V. McGiynn 418 Dows V. Chicago 443 Dows V. Green 147, 824 Dows V. Hotchkiss.. 36, 39, 42, 187, 203, 524 Doyle V. Mubren 561 Doyley V. White 347 Drake V. Beckham 72 Drake v. Cockrof t 523, 626, 627 Drake v. Drake 481 Draper V. Gordon 636 Draper v. Hitt 662 Draper v. Stouvenal 664 Dresser V. Ainsworth 473 Dresser v. Barton 564, 617 Dresser v. Dresser 444 Dresser v. Stansfleld 620, 555 Drew V. Coulton 469 Drew V. Sixth Av. E. E. Co 320 Dreyer v. Rauch 305 Driscoll V. Newark, etc 375, 452 Driscoll V. Rosendale 679 Drought V. Curtiss 288, 658 Druramond v. Hasson 795 Drury V. Dennis 346 Dubois V. Allen 397 Dubois V. Weaver 396, 451 Dudley v.'Hawley 458, 460 Dudley v. Mayhew 314 Duell V. Cudlipp 69, 70 Duel V.Spencer 844 Duff V. Badd 307 Dufi:y V. Dufty 489 Duffy V. Duncan 633 Duffy V. Harrison 399 Duffy V. O'Donovan 867 Duquid V. Edwards 843 Duke of Ohandos v. Talbot 63 Duke, etc., v. Metropolitan, etc 392 Duraont V. Smith 448,450 Duncan v. Berlin 377 Duncan V. Luntley 335 Duncan V. Stanton 623 Duncan v. Topham 410 Duncannonv. Campbell 367 Dunckel v. Kocker 394, 448 Dunham v. Mann 304 Dunham v. Powers 696 Dunham v. Troy, etc 455 Dunkam v. Stuyvesant 704 Dunlop V. Glidden 483 Dunlop V. Higgins 319 Dunlop V. Hunting 323 Dunlop V. Lambert 859 Dunlop V. Snyder 508, 661 Dunnv. Calcraft 336 Dunnage v. White 697 Dunnell v. Kettlekas 430 Dunning v. Ocean National, etc 875 Duppa v. Mayo 416 Durant v. Hankerson 561, 787 Durant v, Gardner 365 Durant V. Einstein 407, 633 Durell V. Pritchard 353 Durgin v. Ireland 207 Du Khone, v 690 Durkee v. Saratoga B. H. Co. . . 151, 760, 765 Durkee v. Mott 485 Durkin v. City of Troy 391 Durman v. Killam 609 Dustan v. McAndrew 342, 406, 445, 486 , 487, 488, 703 Dutcher v. Slsck 826 Dutchess V. Hardlr>g 891 Duttan V. Marsh 293 Dwight V. Webster 702 Dyas V. Cruise 433 Dyckman v. Allen 146 Dyckman v. Mayor 703 Dyckman v. Valiente 744 Dye V.Kerr 399, 489 Dyett V. North Am., etc 54 Eadie v. Shannon 670 Eaglestonv. Son 157, 469 Eames v. Prentice 448 Bamesv. Sweetser 347 Earl V. Camp 863, 864 Earl of Falm outh v. Thomas 674 Basley v. Crawford 843 Bastern'Plank Eoad Co. v. Vaughan . . 168 Baton V.Alger 168 Eaton V. Balcom 499, 663 Eaton V. Benton 489 Eavestaff V. Russell 812 Eckstein V. Frank 351 Edelstein v. Vick 447 Bdick V. Crim 473 Edsall V. Brooks 312, 428, 678, 679 Bdson V. Dillaye 633, 546, 650, 663 Edwards v. Bart 338, 417 Edwards v. Carr 302 Edwards v. Clemens 552 Edwards v. Lent 635, 636, 638, 541, 544 Egberts v. Wood 109, 146 Bgert V. Wicker 838, 833, 839 Egginton's Case 468 Ehle V. Chittenango Bank 366 Bhle V. Haller 143, 289 Ehle Y. Judson 165 Bhle V. Moyer 100, 101 Eighth National Bank v. Fitch 885 Elder v. Bogardus 299 Bldridge v. Adams ... 74, 75, 99, 190, 200, 453 Eldridge v. Mather 669 Bley V. Broughton 100, 1.57 Elizabethport, etc., v. Campbell 692 Bllicottville.etc, V.Buffalo, etc... 409, 443 Elliot V. Pailey 303, 407 Elliott V. Hart et al 157 Elliot V. Northeastern r 449 xvm TABLE OF CASES CITED. PAGE. EUisv. Levsner 130, 800 Ellis V. Willard 485 Ellsworth V. Brewer 38:^ Ellsworth V. Lockwood 41;;, 439, 440 Elwell V. Chamberlain 33(5 Blwood V. Dielendorf 438, 468 Elvv. Coolc 427 Ely T. Lowenstein llli, 113, 792 Ely y. Mumtord 339, 669, 700 Ely V. Norton 314, 842 Ely V. Supervisors 086 Enierson v. Bleakly 68 Emerson y. Booth 69, 446 Emerson V. Spicer 675 Emery V. Pell 203 Em ery v. Pease 273 Emmens v. Elderton 485 Emmons V. Cairns 70 Emm ertan V. Matthews 471 Emulous, The 261 England v. Davidson 418 England v. Lord Tredegar 368 Englis V. Eurniss lA 403 Bno V. Woodworth 190, 194, 198 Enos V. Thomas. . . 125, 126, 145, 1.50, 776, 820 Ensign V. Colburn 475 Ensign v. Shearman 230 Episcopal Church v. Varian 293 Erben V. Lorlllard 305 Erickson v. Compton 91 Brie, etc., v. Patrick 497 Ernst V. Kunkle 622 Erwin v. Downs 470, 471 Esdaile v. La Nauze 335 Esmay v. Fanning .302, 459 Esmond V. Van Benscoten .... 240, 590, .593 Esselstyne v. Weeks 206 Estate of Dewees 664 Evans v. Bagshaw 400 Evans v. Brimbridge 698 Evans V. Harries 246, 330 Evans V. Stokes 83 Evans V. Walton 425 Ewing V. Glasgow Comm'rs 898 Exchange Bank v. Kice 858 Executors of Keese v. Fullerton. . . 828, 829 Ex parte Greenway 369 Ex parte Sifford 865 Eyres V. Sedgwick 483 Fabbricotte V. Launitz.... 250, 593,639, 733 Faber v. Faber 447 Fahy v. North 490 Pagen v. Davidson 693 Fairbanks v. Bloomfleld 18], 105 Fairbanks v. Corlies 316 Fairbanks v. Mothersell 372 Fairbrother v. Pratent 358 Fairohild v. Bentley 394 Fairchild v. Durand 361 Fairmount v. Stutler 400 Fairweather V. Satterly 58 Pake V. Smith 320, 379, 436, 470, 473 Palcke V. Gray 697 Falconer V. Meyer 734 Falliok V. Barber 419 Fallon V. McCunn 128 Fancher V. Goodman 342 Fargo V. Arthur 360 Parish v. Corlies 830 Farman v. Parker 430 Farmer v. Farmer 745 Farmers' Loan, etc., v. Seymour... 591, 803 Farmers, etc., Bank v. Joslyn 191 Farnham V. Mallory 434 Farnsworth v. Clark 169 Farr v. Pearson 403, '444 Parr v. Smith 443 Ifarrand v. Herbeson 819 Parrand v. Marshall 449 PAGE. Parrant v. Barnes 388 Farrar v. Beswick 444 Farrar v. Chaufl'etete 4.53 Farrington v. Bank 698 Fash V. Kavanagh 365 Pasnacht v. Stehn 343, 250, C48, 6,53 Fassut V. Talmadge 832 Fattrech V, McKay 6.53 Faulkner V. Erie 374 Faunce V. Burk 487 Pawcett V. Laurie 83 Fay V. Grimstead 510, 511, 659, 569 Fay V. Halloran 416 Fay T. O'Neill 370 Fayte v. Bird 303 Fechter V. Montgomery 3.53 Feeny v. Peoples 315 Fell V. Beyer 505, 561, .565, 787 Fellows V. Fellows 87, 106 Fellows V. Gwydr Sil Fells V. Vestvah 193, 204, 840 Felthouse V. Brindley 457 Fennv.Craig 81 Fennings V. Grenville :364 Ferguson v. Hamilton 470 Ferguson v. Norman 616 Ferguson v. Metropolitan, etc 34U Fern v. Vanderbilt ^ 1.50, 151, a:H Ferner v. Williams 180,407 Ferreiva V. Depew 623 Perrinv. Myrick 142, 328, 665 Ferris v. Crawford 366 Petridge v. Merchant 447 Fetridge v. Wells 4-17 Field v. Boland 893 Field v. Hawkhurst 833 Field V. Maghee 73, 115 Field V. Mayor of New York 67, 71, 787 Field V. Morse 3.51, 834 Fieldv.Stone 47,49,251 Field T.Syms 843, 843 Field V. Woods 697 Fielden V. Carrelli 776 Fieldenv. Lahens 119,441 Fiery V.Emmet 878,895 Filer V. New York Cent. R. E. Co 880 Fillmore v. Horton 461 Finch V, Parker 888 Finch V. Pindon 669 Finch V. Walker 885 Pinnertyv. Barker 208 First National Bank v. Ballon 875 Fischel V. Scott 433 Fish V. Ferris 460 Flshellv.Bell 376 F^isher v. Becliwith 865 Fisher V. Clark 448 Pisk V. Howland 94 Pitch V. Bigelow 3.S3, 645 Pitch V. Carpenter 4"^5 Pitch V. Com'rs, etc., of Kirtland 209 Pitch V. Gardiniere 437 Fitch V. Snedikar 423 Pitch V. Toulinar S87 Fitzgerald V. Burrill 886 Fitzgerald v, Redfleld 438, 580 Fitzgerald v. Vicars 893 Pitzliugh V. Wiman 74 Fitzjohn V. McKinder 338 Flauimerv. Kline 517, 533,540,648, 653 Flanagan v. Demarest 405 Flanagan v. Tinen 54,60, 346 PlBct V. Borland 338 Fleet V. Hellenkamp "..391 Plectwoiid V. City of New Yoi-k... 466, 467 Fleming V. Newton 366,407 Pleury v. Brown 517, 546, 648 Fleury v. Koget. . . 517, 635, 539, 540, 570, 648 653 Flinii V. Powers , 373 TABLE or OASES CITED. XIX PAOE. Flood V. Reynolds 535 Flora V. Carbean 564 Florence V. Hopkins 133,336, 528 Floyd V. Dearborn S3, 25 Flynn V, Bailey 143 Flynn t. Hudson River R. K. Co 159 Flvnn V. Powers 677 Fosal V. Pirro 207, 412 Fotrerty v. Jordan 675 Fogg V. Nahant 392 Folandv. Johnson 684 Foley V.Hill 391 Follett V. Jewett 243, 573 Folsam v. Marsh 407 Fonda v. Sage 408 Fonda V. Van Home 453 Foote V. Buchanan 447 Foote V. Lathrop 53 Foote V. Morris 60 Foote V. West 703 Forbes v. Shattuck 443 Forbes v. Waller 388, 516 Ford y. Cobb 460 Ford V. Ford 839, 830 Ford V. Keith 383 Ford V. Mattice 150, 151 Ford V. Monroe 397 Ford V. Townsend 461 Ford V. Williams 299, 453, 455 For'lham v. London, etc 387 Foreman y. Mayor 388 Fork v. Koberts 664 Forrest v. Forrest 60, 827 Forrest y. Mayor 466 Forsyth y. Edmiston 143 Forsyth V. Wells 460 Forty. Gooding 300 Fort Plain, etc . , y. Smith 345 Fosgate v. Herkimer, etc., Co 131 Foster v. Essex, etc 303 Poster y. Hazen 308, 363 Foster V. Magee 443, 444 Foster y. Milliner 637 Foster V. Van Wyck 441 Fosterv.Wood 03, 361 Foulger y. Newcomb 438 Fowler V. Abrams 193, 331 Fowler v. Bowen 438, 695 Fowler V. Clearwater 6S0 Fowler v. HoUins 458 Fowler v. New York, etc 355 Fowler v. Regney 465 FowIsT. Spear 898 Fox V.Hunt .547, 786 Foxcraft v. Lasey 438 Foy v. Poy 373 Poyv.Troy&BostonR.R. Co 66, 70 Frame v. Dawson 434 Francis V. Cockrell 388 Francis v. Crywell 690 Frank y. Levie 157 Franklin y. Heiser 430 Franklin v. Keeler 366 Fraser v. Harbeck 433 Frazer v. Freeman 375 Frear v. Hardenburgh 491 Fredericks v. Mayer 353 Freeland y. Van Campen 662, 687 Freeman y. Atlantic Mut. Ins. Co 391 Freeman v. City of Boston 419 Freeman y. Frank 99, 100 Freeman y. Freeman 4^0 Freeman y. Fulton, etc 355 Freeman v. Jeffries 380 Freeman v. Rosher 104 Freeman y. Schroeder 367 Freeman y. Young 159,463 Freer v. Stotenbur 450 Frees v. Ford 316 Freethy V. Freethy -■ 61 PAGE. French v, Andrade 146 French v. Carhart 479 French y. Vining 391 French v. White 73 Freto V. Brown 400 Prey v. Johnson 304 Freyberg v. Pelerin 58 Frickett V. Brice 304 Fried V. New York Cent. R. R. Co 66 69, 70 Fried y. Royal Ins. Co 703 Prink V. Hamden, etc 355 Frinlt v. Morrison 103 Frost V. Duncan 450 Fry y. Bennett . . 37, 40, 209, 210, 536, 573, 579 581, 607, 733, 733, 798, 819 Pryatt y. Sullivan, etc 460 Fulham y. McCarthy 84, 88 Puller V. Pullerton 73, 96 Fuller y. Van Geeson 465 Pulton v. Gilmore 389 Fulton Fire Ins. Co. v. Baldwin 70, 388 563, 766, 770, 773 Furniss v. Brown 138, 143, 835, 836 Furniss v. Ferguson 474 Gaffney y. Chapman - 663 Gage V. Angell 615, 619, 637, 638 Gage V. Brewster 413 Galbraith V. Pullerton 697 Gale V. Archer 431 Gale y. Bates 316 Galev.Miller 403 Gallagher y. Mason 703 Gallagher v. White 344 Galland v. Galland 293 Gallatin v. Erwin 564 Gammon y. Plaisted 870 Gardner v. Adams 65 Gardner v. Barney 463 Gardner y. Clark 496, 500 Gardnerv. Heart 4;i0, 474 Gardner v. Ogden 142, 739 Gardnerv. Williams 367 Garlinghouse V.Jacobs 311 Garner v. Derring 476 Garry. Bright 114 Garr y. Martin 463 Garr v. Selden 579 Garrard v. Haddan 334, 673 Garrison v. Carr 159, 161 Garvey v. Carey 665 Garvey v. Fowler 163, 181, 193, 533 Garvey v. Jarvis 663 Gaspar v. Adams 188, 830 Gates y. Bliss 700 Gates V. Davenport 484 Gates V. Lounsbury 335, 460 Gates V. Smith 465 Gath y. Lees 394 Gattorno v. Adams 343 Gauntley y. Wheeler 463 Gautret v. Egerton 386 Gay y. Paine 173,176, 180 Geere y. Dibble 85 Gehm y. Levy 568 Geiger et al. v. Harris 493 Geisler y. Acosta 333 Gellatain y. Erwin 394 General Mut. Ins. Co. y. Benson 110 Genesee Mut. Ins. Co. y. Moyuihen — 535 544, 605 George y. McAvoy 383, 833 George y. Van Horne 71, 436, 484 Getty y. Binsse 897 Getty y. Hudson River B. H. Co . . 37, 31, 49 376, 758, 765, 766, 833 Gibbsv. Chase 453 Gibbsv.Nash 305, 555 Gibson y. Toby 663, 668 XX TABLE OF OASES CITED. Giesson v. Giosson 174, 550, HV.l, Gllioii V. Levy '■Mi, Uilinn V. Stanton Gilbert V. Beach IlHt, Gilhert v. Cram Gilljtirt V. Newell Cillnn-t V. Poteler 4;!l, Gilhert V. Rounds UlU, 551, r.iiT, Gill)iTt V. Bhowernian Gilbert v. Thompson Gilbert V. Wyraan Gilchrist v. Comfort Gilding v. Eyre Giles V. Lyon Gill V. McNamee Gillespie v. Carpenter Gillespie v. Torrence 588, 0;';i, Gillett V. Bordcii Hil\ Gillctt V. Campbell KW, Gillettv.Hill Gillett V. Maynard Gillett V. Mood Gillett V. Philips Gillian V. Norton Gillies V.Lent 346, Gilligan v. Mayor, etc 24(i, 330, Gillis V. Shaw Gillott V. Efisterbrook. Gillett V. Kettle , Gilmartin v. Mayor Gilmore v. Hempstead Ginnon v. New York, etc Given v. Webb Gladwell v. Stegall Gleason v. Moen 61G, Glen, etc., v. Hall Glenny V. Hitchins 184,180, 199, Glover V. London, etc Glyn V. Caulfleld 366, Glynne v. Locke Goblin V. McMullin Godding v. McAllister Godfrey v. Hice Godfrey v. Townsend Goedel v. Robinson Gi Gordon v. I']l|iliick (ioidoii V. Harper Gordon V. Hc.sletter 191, 4r»7, (;ordon *f. sinrling Ul, Gore V. WiilijMiis Gorham v. Gorhaiii (Jorton V. K<'f!'^r (Josllng V. Acker (JotchctiM V. MaLlrson fJoiild V. Armstrong 108, Gould V. BoHton, etc PAGE. Gould V. Chapin 79J Gould V. Gould 61 Gould V. Homer 559, f)69 Gould V. Tliompson 405 Gould V. Williams 49, .^Jl, GOj, 053 Goulding v, Oavidson 372 (ioulet V. A.-sclor 24, 301, ;i03 Gourley v. Mnsenldi^'lor 842 Goiivoneur V. Elnienilorf 557 Gov; V. Lawrence 901 Gower v. JOyro.. .-, 476 Gracie V. Palmer 800 Graftv. Bennett 411 Grahamv. narrower 397, UTS Graham V. James i'-'^) Graham v. Kinder 'Mi Graham v. Mc.ijoun ^H^i Graham v. Scripture ■i>'''.i Graham V. SI om; .573, 574, .'/.o Grand Junction, etc., v. Shugar 475 Granger v. Olcott :ji8 Granger v. Pulaski 311 Grant V. Lasher 7'i5 Grant v. McCaughiu 830 Grant V. Shurler 146 Grantv.Smith OHit Graves V. Dudley 4."iT Graves V. Porter 4]tj Graves v. Spier 372 Graves v. Woodbury ti~0 Gray v. Bompas *'*'■'■'> Gray v. Chaplin ]<''•' Gray v. Durland 435, 4:^0 Gray v. Harris ^''•* Gray v. Kendall 044 Grayv. Nellis ~1- Grey v. Palmer S41 Great Western Ry. Co. v. Braid 904 Greaton v. Smith 400 Green V. Barrett ^O-t Green v. Bates 98, 103, 104, 3a5, ™'sn Green v. Clark 75, 76, 301 Green v. Folgam 353 Green V. Green 61 Green V. Law 695 Green V. Putnam 400,401 Green v. Roberts 398 Green v. Shepherd 169 Green v. Shumway 40-S Greene v. Hud.son 397 Greene v. Kennedy 4.>3 Greenleaf v. Mumford 138 Greenvault v. Davis los Gregg V. Birdsall 410 Gregg V. Pierce 4is Gregory V. Trainer 800 Gould V. Gould 70 Gridley V. Gridley Ill, 140 Gridley v. IMeCumber :.'.'il Grimn V. Glarko 333 Griflin V. Cohen Si!' Grimn V. (.'niver ;U9 Griflin V. Griffln IJ;;: Grirtith v. Follett ail, Os; Grinith V. I.uwiy tiiHj Grimth V. Me(^unurn (iSij Griflith V. Williams loi Griggs V. Howe 843, S44 Grim V. Cairs 4S-1 GririnoU V, Schmidt 70, 91, \U Grocers' Hank v. Glarke 71 Groiors' Bank v. Kingman 440 Groosbcck V. Dunscomb 415 Groser v. Slcllwagen 128 Grosvenor v. -:Vtlantic, etc 355 Grounsell V. Lamb 431,094 Grout V. Townsend 168 Grover v. Brandenburg 483 Grunwell V. Garner lOO Grymes V. Howe 9(17 TABLE OF CASES CITED. XXI PAGE. Griiardians, etc., v. Green 4il Guest V. WiLiTeii 130 G uier v. Pape (J93 Guilderland v. Ivnux 71 Gaillion v. Luiido 447 Gurnee v. IToxsie 04 Gutchess V. Daniels y9:j Gutohessv. Whiting 293 Guy V. Oaldey 843 Gyre v. Culve 665 Haacli V. Fearinff Habiclit V. Pemberton S3, 91, 117, Haolielt V. Belden '.... 103, H:u'4iett V. Richards 537, Hackk-y v. Ofjmun 580, 597, Hadlej" v. Taylor Hagal V. Simmons Hagar V. King Hagm- V. Hager llimfer ¥. Tibbetts Hague V. O'Connor Haight T. B Ldgley 353, 563, Haightv. Child 184; 433, 433, 434, Haight V. Hovt 70, Haii.'ht V. Saiiier Haines V. Corlies HaitB V. Baker 36, 588, 631, 765, Hale V. Omaha National, etc.. 86.3, 886, Hale V. Kawsoa Hall V. Bartlett Hall V. Cazenove Hall V. City of Buffalo Hall V. Cochrane Hallv. Fisher Hall V. Hodskins 394, 448, Hall V. Huntley 154, Hall V. Landerdale Hall V. McKechnie HallT. Middleton Hall V. People's Mut. Ins. Co Hall y. Kobinson 66, 70, Hall V. Southmayd Hall V. Strvker Hall V. Taylor Hall V. Vaughan Hall V. Warner Hall V. WeKtern, etc 193, Hallenbeck V. Clow 573,574, Hallett V. Hallett 84, Hallett y. narrower Halliday v. Hart Hallock V. Jaudin Hallock y. Miller 246, Halsey y. Black Halsey y. Carter 636, Halsey V. Flint 461, Halsey v. Reid Halstead v. Black Halstead v. McChesney Ham y. Greve Hambletou y, Veere '^'S,i, Hamilton v. Cummings Hamilton y. Ganyard Hamilton y. Gridley Hamilton y. Hough 530, Hamilton y. Lomax Hamilton v. McPherson Hamilton v. Waters Hamilton v. Windolf Hamilton v. Wright Hamlin y. McCahill Hammack v. White Hammer v. Barnes Hammond v. Christie 663, Hammond v. Corbett Hammond y. Shepard Hammond y. Tillotson Hance v. Remming 517, Hauk3 V. Drake PAGE. Hanna y. Shields 700 Hannayy. Pell 633 Haiu)very. Turner 204 Hausc y. Cowing 673 Hanvey y. Rochester 293 Hanway y. Boultbee 333 Harbin v. Green 397 Hard V. Seeley 676, 690, 694 Hardcastle v South, etc 346 Hardman v. Bowen 397 Hardy v. Ames 680 Hardy V. Peyton 457 Hardy v. Veasly 303 Harev. White 839 Harger V. McCulliiugh 168 Harger y. Wilson 887 Hargraves V. Holden 339 Harker v. Mayor 436 Harley y. King 316 Harley V. Ritter 54 Harlow y. Hamilton.. 250, 591, 593, 647, 653 787 Harmony y. Bingham 467, 676 Harper v. Bangs 361 Harrington y. Binns 299 Harrington v. Slade 831 Harrington y. Snyder 302 Harriott y. Van Cott 316 Harriott V. Wells 831 Harris y. Clark 481 Harris v. Cone 253 Harris V, Currier 398,399 Harris y . Fawcett 868 Harris v. Frink 873 Harris y. Hammond 588, 639, 673 Harris v. Knickerbocker 555 Harris y. Moody 369 Harris y. Sohultz 843 Harris y. Smith 75 Harris V. Story 683 Harrison y. Good 396 Harrison y. Bailey 840 Harrison y. Great, etc 387 Harrison y. Mcintosh 75 Harrison v. Marshall 303 Harrison y. Richardson 563 narrower y. liitson 686 Harrus y. Healey 411 Harser y. Wallis 484 Hart V. Hart 484 Hart y. Haryey 353 Hart y. Hoffman 864 Hart V. Hudson 344 Hart V. Lan man 488 Hart y. Sexias 363 Hart y. Young 373 Harter v. Grill 567 Hartford, etc., y. Brush 694 Hartford, etc., y. New York, etc.. 675, 684 Hartley y. Herring 346 Hartley y. Tatham 633, 665, 68S Hartnett V. Gelding 433 Haryey v. French 367 Haryey y. Mount 113 Harvey y. Smith 335, 673 Harwood y. Hilyard 393 Hasbrouck V. Kingston 443 Hasbrouck v. Lounsbury 76, 301 Haskell y. Blair 466 Haskins y. Kelley 130, 309, 407 Hasser v. Wallis 484 Kassinger y. Solms 383 Hassour y. Doe 423 Hastings y. McKinley..58, 103, 660, 743, 744 Hatch y. City of Buffalo 310, 408, 443 Hatch y. White 393 Hatch y. Wolf 391 Hatcher v. Hatcher 433 Hathorn y. Leland 453 Hatters' Bank y. Phillips 497 xxu TABLE OF CASES CITED. PAGE. Haupt V. Pohlman 370 Havemeyer v. Cunningham 42'! Havens v. P-itterson 4M, 465 Hawes v. Wtjolcocli 068 Hawk V. Tliorn 65, 139, ]91 Hawkins V. Clifford 473 Hawkins v. Jackson 376, 414 Hawks V. Drake 685 Hawks V. Inliabitants '. . . . 899 Hawley y. Butler 331, 332 Hawley V. Clowes 475 Hawleyv. Wallace 348 Hawley et al. v. Wolverton 43 Hawrally v. Warren 434 Hayden v. Bradley 364 Haj^es V. Borders 397 Hayden v. Cram 343 Hayes v. Hiddle 843 Hayes V. Willis 353 Hayley v. Goldsmith 424 Haynes v. Foster 679 Hays V. Drake 397, 679 Haxton v. Bishop 339 Hearne v. Keene 466 Heat V. Gillmer 397 Heath v. Barman 409, 443, 704 Heath v. Harmour Y04 Heaton v. Wright 573, 577 Heckle v. Lurvey 373 Hedges v. Hudson R. R. E. Co 856 Heebner v. Townsend 463 Heeln v. Crawford .• 698 Heermans v. Williams 483 Heffernan V. Benkard 384 Heine y. Anderson . . . 195, 213, 216, 234, 225 518, 570 Hemson V. Decker 161 Henderson v. Eason 444 Henderson v. Jackson.,.. 139, 148, 364, 274 609, 753 Hendricks v. Decker 288, 564, 565 Hendrickson v. Beers 71 Hennessy v. Farrell 487 Henning v. New York, etc 110 Henry v. Bow 809 Henry v. Henry 143 Henry V. Root 677 Henshall v. Roberts 156 Herbert v. Heges 401 Hermance v. James 347 Heron v. Davis 487 Heron v. Treyne 394 Herr v. Bamburg 574 Herrick v. Borst 698 Herrick V. Fritcher 687 Herring v. Dole 333 Herring V. Hoppock 453 Hertzog v. Hertzog 398, 489 Hess V. Buffalo, etc 126, 143, 752 Hess V. Fox 620 Hewes v. McNamara 392 Hewitt V. Mason 429 Hewitt V. Melton 336 Heye v. BoUes 318, 516 Hibbard V. Robinson 370 Hibbard v. Stewart 458 Hichens v. Congreve 109 Hickock V. Hickock 322 Hicks v. Cleveland 460 Hicks V. Doran 311, 386, 388, 396, 087 Hicks V. G-ildersleeve 664 Hicks V.Hinds 392 Hicksville v. Long Island, etc. 588, 628, 631 Hier v. Grant 667 Higgins V. Dewey 879 Higgins v. Freeman 131 Higgins V. Rockwell 517, 520 Higgins V. Scott 206, 307 Higgins V. Thomas 565 Higgins V. Wright 438 Higgs V, Mortimer High V. Batte Hill V. Finney Hill V. Fiske Hill V. Kirwan Hill V. Lane Hill V. McCarthy 21,25, Hill V. Muller 600, 643, Hill V. Place 321, 688, 700, Hillv.Smith 651,6.54, Hill v. Sweetzer Hill V. Thacter 57, 59, 1.t4, 15.5, Hilliard v. .Austin Hilliard v. Richardson Hillmanv. HiUman 149, 151, Hills V. Balls Hills V. Hayes Hills v.Tallman'sAdm'r Hilton V.Woods Hinde V, Smith Hinds V. Tweddle Hine V. Handy Hinerv. Newton Hinnan V. Judson 587, Hinton V. Hudson Hitchings V. Van Brunt Hitchcock V. Hitchcock Hoard v. Feck Hoare v. Dickinson Hobart College v. Fitzhugh 313, Hockenburg v. Meyers Hodges v. Callaghan Hodges V. Hunt Hodges V. Smith Hodgman v. Western R. R. Corp'n. 66, Hoe V. Sanborn Hoey V. Felton 216, Hoffman v. ^Etna Ins. Co Hoffman v. Armstrong 296, Hogan v. Hoyt Hoggan V. Wardlow Holden v. Claiicey 425, Holland v. Prior Hollenbeck V. Claw 572, 584, Hulley V. Boston Gas Light Co HoUeyv.Mix HoUiday v. The Vestry Hollingdale V. Lloyd Hollisv. Wells Hollisterv. Hollister Holman v. Dord Holmes v. Clarke Holmes v. Davis 232. Holmes 181, 566, D6S, Kerrison Twist. Weed. 811 564 435 108 790 643 701 821 698 ::Ki 206 345 .594 470 901 695 460 855 765 168 8.59 631 347 770 400 348 246 481 166 370 206 358 67 470 319 451 100 870 469 UO 816 340 333 :38s 334, Holmes v. Holmes v Holmes v Holmes v Holt V. Hardcastle Holt V. Ross Holtsingor v. Nat. Com. Ex. Bank Hone V. .Mutual, etc Hood V. In man 49, Hoogland v. Hudson et al 96, Hooker V. Knob Hooper v. Lane 397, 677, Hope Mut. Ins. Co. v. Taylor Hopkins v. Adams Hopkins v. Everett 533, H<^plvins V. Rich aril son , Hopkins V. Tangueray Hopper V. Hopper 596, Horn V. Bensusan Home V. Midland K'y Co Horner V. Lyman 440, Horner V. Wt.>od Hornfager V. Horufagcr. 2^5. 288, 660, Horsfallv. Thomas. Horson v. Pike . . Horton v. Garrison. 209 221 374 491 702 321 ■m 303 88 380 3S0 319 593 765 608 678 680 69 545 491 472 5i)S 324 902 , 463 71 744 823 337 422 2^ TABLE OF CASES CITED. xxm PAGE. Horton v. Payne 54, 60, 288 Hosf ord V. Merwin 236 Hosleyy. Black lYl, ]81, 566 Hotahngy. Hotaling 330, 321, 448, 468 Hotchkins v. Hodge 436 Hotchkiss y. Artizans' Bank 331 Hotchkissv. Auburn, etc., R. R. Co, 143, 450 Hotchkiss y. Crocker 155 Hough y. London 389 Houghton y. Allen 80, 81, 84 Hougr.ton y. Baohman 677 Houghton y. Skinner 2SS, 657, 833 Houghton y. To wnsend.... 361,510,511, 549 550, 654 Houghtwout y. Murphy. 394 House y. Cooper 141 House y. Corning 686 Hoyer v. Barkhool 311 Hoyey V. McCrea 335,353 Howard t. Albro 704 Howard v. Cro\yther 71, 426 Howard y. Farley 304 Howard v. France 321, 402 Howard y. Halsey 438 Howard v. Holbrook 703 Howard y. Michigan South. E. E. Co., 714 Howard v. Sexton Howard y. Shaw Howard v. Sherward Howard y. Tiffany .... 22, 36, 41, 49, 248, Howe V. Buffalo, etc., R. R. Co Howe y. Beckham 139,149,265, Howe y. Wilson Howell y. Frazer 271, .536, 7.56, 777, Howell y. Knickerbocker Life Ins. Co., Howell y. White Howland y. Coffin Howland y. Cuykendall Howland y. Edmonds Howsee y. Hammond Hoxsie y. Cushman 173,174, Hoyt V. Bonuett Hoyt y. Gilston Hoyt y. McKensie 314, 366, Hoyt y. Sheldon Hoyt y. Thompson 66, Huber v. Riley Hubbard y. Briggs 337, Hubbart v. Phillips Hubbell V. Cai'penter Hubbell y. Cramp Hubbell y. Fowler Hubbell y. Liylngston 281, Hubbell y. Sibley Hubbel y. Van Schoening Hubert y. Fera Huddard y. Rigby Huddiestone y. Lowell, etc Hudson y. Huyler Hudson y. Lutz 398, Hudson y. Plets Hudson Eiyer y. Loeb Huelet y. Rayno 314, Huet y. Lord Say Huffery. Allen Huff y. Bennett Huff y. Wagner HuggiQS y. King 112, Hugh y . Rees Hughes y. Eyans Hughes y. Garner Hughes y. McFie Hulbert y. Ferguson Hulbert y. Hope Mut. Ins. Co Hulbert y. New York, etc Hulce y. Thompson 136, 138, 143, Hulett y. Whipple 366 Hull y. Ball 643, 644 Hullv. HuU 717 212 353 PAGE. HulIv.Smith 664 Hull V. Vreeland 139 Hume y. Pocock 431 Hummell V. Wester 390 Humphrey y. Brown 253 Humphrey y. Mitchell 628 Humphreys y. BuUer 329 Humphrey y. Persons 207 Humphreys y. Pratt 883 Hunt y. Amidon 468 Hunt y. Chapln 885 Hunt y. City of Utica 492 Hunt y. Dutcher 180, 209 Hunt y. Farmers' Loan & T. Co 588, 633 636, 637, 639 Hunt y. Meacham 282,645 Hunt y. Wallis 831 Hunt y. Wolfe 322 Hunt y. Wolton 323, 398 Hunty. Wyman 424 Hunter y. Frisbee 765 Hunter y. Gibbons 682 Hunter y. Hudson Eiyer Iron, etc , Co., 309 Hunter y. Hunter 313, 468, 481 Hunter v. Powell 142, 264, 753 Hunter y. Town of Marlboro' 563 Hunter y. Walters 684 Huntington y- Ballou 681 Huntington y. Claflin 493 Huntington v. Douglass 473, 666, 705 Huntington y. Ogdensburgh, etc 485 Huntington v. Thomas 705 Huntley y. Dows 324 Huntly y. Sanderson 383 Hurd y. Swan 482 Hurlbuty. Young 226 Hurst y. Litchfield 192,304 Huson y. Dale 577 Hussee y. Roundtree 489 Husted y. Craig 304 Hutchinga y. Munger 314, 435 Hutohins y. Smith 75, 437, 883 Hutchinson y. MarketBank 664 Hutchinson y. Peck 347 Hyatt y. Bates 408 Hyatt y. Pugsley 158 Hyatt y. Taylor 354 Hyde y. Conrad 765 Hyde y. Cookson 460 Hyde y. Tanner 400 Hyde y . Van Valkenburgh 118 Hyland y. Paul 678 Hyland y. Sherman 471 Hynds y. Griswold 340, 241, 242, 243 585, 690 Hynds y. Shults 480 Ibbottson y. Peat Iddings y. Bruen Hey y. Frankenstein Imperial Gas Co. y. London Gas Co. 681, Tngerson y. Miller IngersoU y. Skinner Indemaur y. Dames Ingraham y. Baldwin 61, 734, 773, Inhabitants y. Inhabitants In re Eare Bank Drainage In re Hubbard's Dog In re National, etc 124, In re Needham In re Tresider In re Wetmore Ireland y. Litchfield Ireland y. Nichols Irish y. Nutting Irvin y. Brandwood Iryin y. Fowler Iryin y. Gregory Irvine v. Wood 384, Iryine y. Iryine 395 108 435 129 386 781 400 435 111 103 364 843 438 384 434 843 mi SXIV TABLE OIT CASES CITED. PAGE. Isaac V. Velloman IMI Isabella, The 2m Isham V. Williampon 797 l^les V. Tucker 530 Ives V. Humphrey 19i Ives V. Van Auken 480 Jack V. Martin 477 Jacks V. Darrin 369 Jackson v. Alexandria 168 Jackson V. Anderson 843 Jackson v.Bradt 400 Jackson v. Cory USS Jackson v. Crawford 484 Jackson v. Edwards Ill Jackson v. Griswold 673 Jackson v. Hasbrouck 864 Jackson v. Henderson 319 Jackson v. Hopperton 695 Jackson v. Jackson 169 Jackson v. Port 169 Jackson v. Rowe 563 Jackson v. Stoph erd 402 Jackson v. Whedon 537, 569 Jacobs V. AUard 478 Jacobs v. Kolf 305 Jacobson v. LaGrange 488 James v. Chalmers .... 73, 173, 174, 356, 539 James v. Christy 397 James v. Emery 109 Jarndvin v. Exeter 418, 433, 423 Jarmain v. Hooper 399 Jarvis v. Felch 100 Jarvis v. Sewall 303 Jaycocks v. Ay res 573 Jekyll V. Sir John Moore 368 Jenkins v. Continental Ins. Co 415 Jenkins v. Van Schaack 357 Jenkins v. Wheeler 483, 676 Jenness v, Emerson. 400 Jenness v. Wendell 867 Jennings v. Brown 436 Jennings v. Great Western, etc 409 Jermain v. Hooper 453 Jermain V. Pattison 397,339 Jerolimon V. Cohen 137, 139, 377 Jerome V. Scudder 430 Jervis v. Smith 434 Jervis V. Tomkinson 676 Jessop V. Miller 70, 309 Jewett V. Crane 464 Jewett V. Keenholts 454 Jewett V. Palmer 563 Joannes v. Day 736 Johns V. Norris 674 Johnson V. Budge 101 Johnson v. Casey 809 Johnson v. Crane 366 Johnson y. Dixon 364 Johnson v. Hathorn 191, 473, 833 Johnson V. Hubbell 893 Johnson V. McDonald 434 Joh nsoh V. Mallory 368 Johnson v. Melicott 360 Johnson v. Plowman 193 Johnson v. Smith 361 Johnson v. Snyder , 387, 837 Joh nson v. SCutewiler 877 Johnson v. Wetmore 765 Johnson v. White 475 Johnston v. Bennett 70, 115 Johnston V. Winter 895 Johnstone v. Allen 337 Jones v. Bewicke 678 Jones V. Bone 353 Jones V. Buckley 400 Jones V. Bailer 373 Jone^s V. Cliff 703 Jones V. Commonwealth 396 Jones v. Davis 435 pAaE. Jones V. Felch Ill Jonesv.Eort 843 Jones V. Fuwler 410 Jones V. Giboons 410 Jones V. liousatonic, etc 881 Jones V. Jervis 399 Jones V. Morrell 354 Jones V. Norwich 888 Jones v. Palmer 150 Jones V. Phoenix Bank 431 Jones v. President 486,487 Jones V. St. John's College .'. 406 Jones V. Turner 477, 478 Joy v. Martin 103 Judd V. Ensign 703 Judd V. Fargo 881 Judd V. Young 118 Judge V. City of Meriden 869 Judgev.Hall 313 Judson V. Cook 456 Judson V. Gray 399 Jumel V. Jumel 468 Justison V. Crow 701,703 Kahm v. Freytag 564, 567 Kanawha, etc., v. Kanawha, etc... 367, 434 Kane V. Sanger 553 Karker v. Waverly 439, 445 Kasson v. People 673, 673 Kastor v. Newhouse 365 Kaufman v. Griesnan 478 Kaufman v. White 478 Kaupe V. Bridge 318 Kay V. Thompson 104 Kay V. Whittaker 591,610 Keates v. Earl of Cadogan 338, 365 Keating v. New York Cent. R. K. Co . . . 881 Keefer v. Thomas 648 Keeler v. Salisbury 169, 663 Keene V. Clarke 406 Keene v. Laf arge 103 Keene V. Wheatley 836 Keenholts v. Becker 313 Keese V. Fullerton 834 Keliher v. Connecticut, etc 883 Kellerv. Clark 193,231 Kelley V. Babcock 888 Kelley v. Lane 138 Kelley V. Tilton 394, 395 Kelley v. Wade 394 Kellogg V. Baker 515 Kellogg V. Chicago, etc 393 Kellogg V. Church 65 Kellogjr V. Olmstead 110, 169, 673, 693 Kellogg V. Sweeney 74, 75 Kellogg V. Valentine 451 Kelly V. Breusing 188, 437 Kelly V. Campbell 75 Kelly V. Downing 374 Kelly V. Morris 314 Kelly V. Solari 377, 378 Kelsey v. Bradbury 618 Kelsey V. King 409, 443 Kelsey v. National Bank 890 Kelso V. Kelly 430 Kimble V. Wallis 393 Kendall v. Stokes 687 Kendall V. Stone 738 Kennier V. Kennier 334 Kenny v. First National Bank 335 Kent V. Thomas 690 Kern V. Towsley 313,564 Kerr v. Hays 144, 368, 607, 609 Kerrv. Mount 453 Kerrick v. Bransley 481 Kerrigan v. Ray 314 Ketcham v. Zarega.... 541, 546, 547, 603, 604 763, 799 Ketchum v. Barber 168 Kettletas V. Maybee 563 TABLE OF CASES CITED. XXV PAGE. Kettletas V. Myers IVI Keyes V. Joliiiaoii '-'M Kidwelly V. Raby loS Kidzie V. Satifrider i5:! Killmore v. Culver I't Kimberly V. L)ix 488 Klmberly v. Patcliin ;>43 Kinoaid v. Baton 420, 536 Kinoaid V. Kipp tiSl, ti44 KinKv.Baldwln 69T King V. Donnelly 286 Kina V.Dunn 100 Kins V. Fitch 191 Kini? V.King 466 King V. Mayor, etc 831 King V. Orser 427 Kingy. Poole 362 King V. Bay 530 King V. Sh-eriff, etc 464 King V. Stafford 794 King V. Utica Ins. Co .533 King V. Watts. . . , 387 Kingman V. Hotaling 843 Kings V. Lea Ins. Co 593 Kingsland v. Braisted 97, 303, 404, 496 Kingsley V. Bill 893 Kingston Bank v. Bltinge 377, 37S, 381 Kinney v. Kiernan 445, 669, 700, 703 863, 889 Kinney V. McCuUock 438 Kinney v. Nash 310 Kinsey v. Ford 565 Kintrea V. Peiston 474 Kipling V. Turner 464 Kirby v. Baylston, etc 489 Kirby v. Carr 403 Kirkland v. Leary 308 Kissam v. Hamilton 99, 101 Kissock V. Grant 453 Kitchen v. Lee 3.51 Kitchum v. Stevens 470 Kittle V. Van Dyck 131 Knapp V. Abell 363 Knapp V. Burnham 618, 619 Knapp V. Hyde 670 Knee V. Tomlinson 615 Kneedler v. Sternbursh . . 546, 550, 615, 636 Kneiss v. Seligman 768. Knickerbocker Life Ins. Co. v. Eccle- sine 320, 367, 429 Kniflen v. McConnell 426, 564, 567 Knight V. Beach 690, 701 Knight V. Cambers 383 Knight V. Conn., etc 392, 394 Knight V. Goodyear 881 Knight V. Wilcox 435 Knowles v. Gee 23, 37, 38, .594 Knox V. Mayo 395 Knox V. Nutt 168 Kohn V. Lovett 346 Koney V. Ward -. 294 Konitzky v. Meyer 866, 891 Kortright v. Cody 701 Kowing v. Manly 870 Kreitz v. Frost 376, 647, 653 Krulderv. Ellison 74, 666 Kuhn V. Stevens 380, 684 Labaree v. Colby 372 Laburchere v. Dawson 341 Lachaise v. Libby 103, 146 Lackey v. Vanderbilt 151, 267 Lafarge v. Halsey 623 Lafarge v. Herter 41] Lafarge V. Mansfield 405 Laflin v. Griffiths 451, 475 La Grange v. Merrill et al 107 Lahey v. Brady 69, 105 Lahey v. Kingon 63 Laldlaw v. Organ 336 J D PAQK. Laimbcer V. Allen 381 Lake v. Artisans' Bank 378, 438, 467 Lake V. Hurd 862 Larabv. Burbaiik 884 Lamb V. Lathrop 486 Ijament V. iiaight 869 Lamoureaux V.Atlantic Mut. Ins. Co.. 137 377 Lamoreaux v. Morris 209 Larapman V. Milkes 478 Lamport v. Abbott 143 Landon V. Levy 110 Lancaster v. Walsh 418 Lane v. Atlantic Works 880 Lane v. Bailey 638 Lane v. Beam 831 Lane v. Columbus Ins. Co .73, 74 Lane V. Gilbert 575, 587, 605, 653, 761, 785 Lanev. Gould 326 Lane v. Hitchcock 474, 475 Lanev. Morse 283 Lane v. Salter 361 Lane v. Wilkinson 701 Langwoithy V. Knapp 205, 609 Lanier v. Wyman 343 Laning v. New York Cent. E. R. Co . . . . 877 Lannen V. Albany Gas Light Co 340 Lansing v. Coley 520 Lansing v. Parker 585, 597 Lansing v. Smith 345 Lansing v. Wiswall 345 Lantz V. Frey 398 Lapham v. Rice 793 Laraway v. Perkins 345, 330, 405, 566 Lariviere v. Morgan 880 Lasala v. Holbrook 449 Latham V. Egerton 463 Lathrop v. Knapp 437 Latimer v. Wheeler 309, 333 Lattin v. McCarthy 24, 40, 149, 443, 588 Latting v. Latting 110 Lawrence v. Bank.. 81, 88, 140, 143, 505, 633 Lawrence V. Bayard 67 Lawrence v. Bolton 389 Lawrence v. Fox 407 Lawrence v. Kneiss 553 Lawrence v. Gullifer 493 Lawrence v. Leake, etc., Orphan House 119, 122 Lawrence v. Ocean Ins. Co 325, 461 Lawrence v. S}nith 169, 668 Lawrence v. Trustees, etc 119 Lawrence v. Walmsly 693 Lawrence v. Woods 380 Lawrence v. Wright 196, 231 Layman v. Whiting 336 Leach v. Boynton 517, 535 Leal V. Coles 403 Leafv.Glbbs 693 Learv. Friedlander 687 Leather Cloth Co. v. American, etc., Co. 447 Leather, etc., v. Lorsont 352 Leather V. Simpson 379, 471 Leavenworth v. Packer 425, 613 Lee V. Decker 191 Lee v. Ellas 253 Leer. Gunsell 397 Lee v. Haley 446, 447 Lee y. Methodist, etc 392 Lee V. Parker 234, 235 Leeds v. Bowen SCO Lef anu v. Malcomson 438 Lef evre v. Latson 283 Lefierts v. Hollister 206, 754 Lefferts v. Snediker 546, 646, 651, 654 Le Guen v. Gouverneur 636 Lehey V. Hudson, etc 385 Leighte v. Everett 314 Leland v. Hathorn 793 Leland v. Tousey 233 XXVI TABLE 0:F oases CITED. PAOE. Lemon V. Trull 017, 714 Lent V. Padelford 39:i Leonardsville Banlc V. Willard 9') Le Roy v. Marshall :>:i, ;.':», 41, 50 Le Roy V.Shaw Ill, 137, J48, 20ii Leslie v. Leslie 831 Leslie V. Payne 338 Leslie v. Wiley 498 Lester v. Je wett 304 Lester v. Barren 317, 353 Le Texierv. The Margravine 113 Lettman v. Ritz 309, 833, 844, 84ti Leven v. Smith 405, 434 Levi V. Jakeways 724 Levitt V. Dabney 318 Levitt V. Fisher 357 Levy V. Bend 800 Levy V.Hart 313 Lewis V. Acker 605, 63U Lewis V. Greider 343 Lewis V. Jones 337 Lewis V. Kendall 371, 573, 581, 805 Lewis V. McMillen 633 Lewis V. Mott 70, 140, 561, 700, 843 Lewis V. Palmer 438, 453 Lewis V. Peachy 333, 397 Lewis V. Rose 864 Lewis V. Smith 334, 882 Lewis V. Trickey 491, 493 Lexington, etc., R. R. Co. v, Goodman 141 Liambeer v. Allen 643 Libby v. Rosekrans 184 Liemon v. Schenck 588 Lienan v. Dinsmore 389 Lienan v. Lincoln 196, 200 Liftchild V. Smith 673 Lifjhte V. Everett Fire Ins. Co 563 Lillie V. Brig 333 Lillie V. Hoyt 333 Limpus V. London, etc 374 Lincoln v. McLatchie 304, 306 Linden v. Graham - 346, 320 Linden v. Hepburn 31, 31, 41, 376 Lindsleyv. Ferguson 863 Line y. Taylor 394 Linnegar v. Hood 436 Linsday v. Jackson 629 Linsley v. Carpenter , . , 313 Lion v. Orser 301 Lipe V. Eisenlord 435 Lippencott v. Goodwin 607 Liscomb v. New Jersey, etc 873, 880 Lister V. Lister 401 Lister v. Perryman 331, 333 Litchfield V. Boswell 741 Little v. Den 704 Little V. Willetts 675 Livermore V. Bainbridge 103, 103 Livesey v. Harding 516 Livingston v. Ackeston 398 Livingston v. Bishop 073 Livingston V. Fiukle 510,554, 649 Livingston v. Hammer 461,535 Livingston v. Smith 206, 674 Livingston v. Stoeasel 333 Livingston v. Tanner 147, 337, 3;il Lloyd V. Brewster 33ii Lloyd y. The General, etc 3K7 Loader v. Clarke 336 Lobdell v. Lobdell 430, 840, 844 Lobdell v. Stowell 443, 564 Lockhart v. Barnard 418 Loeschigk v. Addison 318 Logue V. Gellick 701 Logue V. Lurke 395 Lomax \. Arding 706 Lombardo v. Case 319 Long V. Bailie 369 Longmate v. Ledi^er 866 Longmeid v. HoUiday 391 PAGE. Longworthy v. Bromley 340 Loomis V. Brown 109 Loomis V. Swick 149, 606 Loomis V. Terry _. 295 Loonani v. Brockway.'. 373 Loop V. Litchfield 337, 39] Loosey v. Orser 565, 606 Lord v.Chesebrough... 173,174,176,528, 639 812 Lord v. Kenney 434 Lord v. Midland 470 Lord V. Cnderdunck 434 Lordv. Vreeland. 253, 776 Lorillard, etc., v. Mesharat 633 Loring v. City of Boston 423 Losee v. Saratoga, etc 388 Lessee v. Williams 903 Loubz V. Huf ner 390 Lovegrave v. London, etc 376 Loveland v. Hosmer 573 LoveU V. Bastoff 887 Lovelock v. King 493 Lovettv. Cowman 830 Lovett V. Hamilton 434 Lowv. Archer 303 Lowber y. Kelly, 73 Lowell V. Lane 498, 623 Lower y. Winters 49 Lowry v. Inman 776 Lozier v. New York Central R. E. Co. . 337 Lucas y. Commerf ord 431 Lucas V. New York Central R. R. Co. . . Ill Lucas V. Wilkinson 689 Lucas V. Worswick 378 Luce V. Hinds 344 Luce V. Izod 68.4 Luckey v. Frauteykee 846 Lucky V. Gannon 457 Lucy V. Wilson 700 Luddington v. Taft 236, 77-1 Ludlow V. Hudson, etc 899 Lufkev.Koch 4J6 Lumbyv, Allday 4:8 Lumleyv. Gye 353 Lumley v. Wagner 353 Lund V. Seaman's Savings Bank 760 Luscom V. Osgood 397 Lutweller V. Linnell 332 Lutz V. Frey ..., 489 Lyle V. Murray 333 Lymanv. Bonney 109 Lyman v. Brown 498 Lyman V. Inhabitants of Amherst. ... 880 Lynch V. Beecher 861 Lynch v.Bischoff 431 Lynch V. Nurdin 375 Lynch r. Steamer 404 Lynde V. O'Donnell 100 Lynde v, Staats 168 Lyons V. Barnes ?90 Lyon V. Valentine 305 Lys V. Withers 357 McAndrew v. Whitlock 308, 666, 677 McArthurv. Wilder 434 McAuley v. Billinger 437 Mc Avoy V. Wright 717 MoBride V. Farmers' Bank 75 McCance v. London, etc 671 McCarthy v. Silvers 44 McCarty V. Dixon 146 McCarty v. O'Donnell 648 McClare v. Paine 305, 854 McClurg V. Howard 6Sl McConnell V. Adams 59 McCool V. Jacobus 439, 445 McCormick V. Bay City 698 McCormick v. Penn.Cent, R.R. Co. 873, ,'^38 McCormick v. Pickering 605 McCormick v. Sarson 565 TAB1;E OF CASES CITED. xxvu PAGE. McCosker v. Brady 11:*, U.S ;i75 McOoun V. Dorslieimer 70, 411 McCoy V. Aroher 473 McCoy V. Lord 46(1 MoCrancy v. Alden. 020 McCuUough V. Colby 5C5, 831 McDonald v. Lord 493, YOO McDonald v. Murphee 443 McDonald v. Pierson 434, 094 McDonnell v. Buffen 567 McDouglass v. Walling 71, 633 McEwen V. The Earl, etc 368 McGarry v. Board, etc 89 McGeev. Eoen 308 McGerrill v. Murpliy 444 McGown V. Morrow 591 McGregor v. McGregor, 113, 533, 048, 653, 054 831, 875, 877 McHarg v. Eastman 840 McHugh V. Schuylkill Co 669 Mcllvaln v. Edgerton 623, 675 Mclndoe V. Mormau 366, 874 Mclniffe v. Wheelock 702 Mcintosh V. Mcintosh 143 Mclntyre v. Borst 464 Mclntyre v. Morris 487 McKean V. Mclvor 307, 389 McKechnie v. Sterling 405 McKeev. Judd 09, 70 KcKensie y. Farrell 798 McEensie V. L'Amoureaux.. 81, 85 McKeon v. See.... 140,335,374,345,308, 449 451, 455, 843 McKinley ¥. Am. Ex. Bank 334 McKnight V. Dunlop 468 McKyringv. Bull 539,550, 564 McLaren v. Hartford, etc 465 McLaughlin v. McGovern 698 McLaughlin V. Nichols 309 McLaughlin v. Walsh 346, 330 McLean v. Tompkins 439 McMahany. Allen 40, 69,71,110, 389 McMahan v. Burchell 444 MoMahan y. Erie, etc 489 McManus r. Cricket 333 McMastery. Booth 31, 38 MuMorris v. Simpson 843 McMullen y. Wooley 473 McMurray y. Gifford 533 McMurray V. Thomas 370, 3TI, 557, 509 McNaughtv. McCloughry 169 McNaughton v. Cameron 843 McNeil y. Tenth National Bank 457 McQueen v. Earquhar 563 McQueen y. Babcock 831 McVean y. Scott 119, 146 McWilliams v. Mason 699 Mabeev. Fisk 438 Mabey y. Adams 336 Mack y. Parks 454 Mackeyv. Mackey 70, 310, 039 Madison, etc., V. Baptist, etc 600 Magee v. Cutler 443 Maghee y. Camden 857 Magre v. Holland 397 Mahew V. Crickett 698 Mahew y. Robinson 496 Mahaney V. Penman 316 Maine y. Curaston 317, 353 Main V. Feathers 416 Main y. King 343, 703 Makin y. Watkinson 364 Malcolm y. Baker 828, 833 Malins v. Brown 433 Mallery v. Lord 4;35 Mallett y. Bateman. 674 Mallory y. Lampshear 16, .568, 785, 786 Mallory y. Norton 330, 411 Maloney. Stilwell 60, 136, 113 Maloneyy. Dows 281, 560 PAGE. Maloney y. Horan 335, 863 Malony y. Scanlun 399 Maltby y. Harwood 398 Manby y. Scott 393, 347 Manchester y. Herrington 101 Manchester V. Sahler 371, 372 Manchester y. Storrs 731, 750 Mandeville V. liiggs 79 Mangan y. Atterton 380 Manhattan, etc. v. Barker 395 Manley V. Gragen 674 Mann y. Barrett 435 Mann y. Marsh 55, 143 Mann v. Moorewood 50, 194, 163, 198, 199 200, 338, 200, 369, 575 Mann y. Proyost 338 Manning v. Tyler 843 Manning y. Whitbeck 188, 199, 323, 720 Manny v. Dunlop 440 Marble v. Lewis 336 Marcley y. Shults 480 Marcos v. Pebreer 108 Maretzek y. Cauldwell 678, 713, 760 Marfleld V. Goodhue 312 Margetts y. Bays 811 Mariposa Co. y. Garrison 739 Markham y. Jaudon 685 Markingv. Needy 418, 422 Marquat y. Marcjuat 377 Marquisee v. Brigham 389, 831 Marquis y. Cunningham 373 Marsh V. Barnh art 658 Marsh y. Benson 737 Marsh y. Ellsworth 580 Marsh v. Keating 380 Marsh y. Oneida, etc 323 Marsh v. Potter 60, 346 Marshy.Pike 4S8 Marsh y. Rulsson 490 Marsh y. Russell 870 Marsh y. Shute 129 Marshall y. Gray 193, 221 Marshall y. Moseley 416 Marshall v. Peters 480 Marshall y. Sladden 112, 113 Marshall y. Sloan 897 Marshall y. York 409 Martin y. Hawks 366 Martin y. Houghton 452,679 Martin v. Kanouse 427 Martin y. KeenzmuUer 629 Martin y. Leggett 486, 487 Martin y. Mattison 139 Martin y. Nutkin 432 Martin y. Wright 489 Marvin y. Inglis 745 Marvin V. Treat 423 Mason y. Breslin 415 Mason y. Crosby 681 Mason y. Denison 58 Mason v. Ditohbourne 694 Mason y. Hand 160 Masony.Ship 397 Mason v. Whitley 831 Massey y. Godyer 449 Massey v. Raynor 393 Masten v. Scoville 353 Masterson y. Botts 97 Masterson y. Hoyt 310 Masterson y. Judson 483 Ma.sterson v. Mayn 319 Masterson y. Short 395 JEasler Stevedores y. Walsh 676 Mather y. Crawford 95 Mather y. Scoles 861 Matsell v. Flanigao 445 Matter of Beers 366 Matter of Bartley 103 Matter of Bornsdorf 103, 103 Matter of Cayanaugh 335 XXVlll' TABLE OF OASES OITED. PAGE. Matter Of Church St 687 Matter ol Doyle 400 Matter of Henry 333 Matter of Marty 6fil Matter of McLaughlin 93 Matter of Miller 140 Matter of Patterson 288 Matter of Pie 4BT, 843 Matter of Eickit's Will 481 Matter of Warren 402 Matterson v. Smith 512 Mattewan v. Bentley 444, 458 Matthews v. Ailcin 438 Matthews v. Beach 761, 762, 778 Matthews v. Chicox:)ee Manuf . Co 288 Matthews V. Lawrence 673 Matthews v. Matthews HI, 300, 400 Matthews v. TerwiUiger 431 Mattice y. Lillie 372 Mattison y. Demarest , . 318 Maxwell v. Bast Eiyer Bank. . ....... 317, 352 Maxwell v. Parnain 143, 278, 758 May V. Skey 347 Mayfleld v. Moore 383 Maynard v. Talcott 171, 255, 356, 755 Mayor v. Bamburger 395 Mayor v. Brben 487 Mayor y. Graham 670 Mayor v. Hamilton Fire Ins. Co 677 Mayor v. Lyons 161 Mayor v. Mabie 637 Mayor y. Park, etc 848 Mayor y. Pillington 107 Mayor y. Ryan 440 Mayor y. Wood 538, 628, 633 Mead ¥. City of Boston 433 Mears V. Landon, etc 417 Mechanics', etc.. Bank y. Bakin 138 Mechanics' Bank V. Foster 403,843 Mechanics' Bank y. Seaton 79 Mechanics' Bank y. Leyy 44 Mechanics' & Farmers' Bank y. Rider. . 63 Medbury y. Watson '. 337 Meech V. Stoner 71 Meehan V. Williams 380 Merchants' Bank y. Bli.ss 683, 687 Merchants' Bank y. New York, etc., Co., 376 835 Merchants' Mat. Ins. Co. v. Baton ... 66, 73 Meridan y. Zingseu 840 Merriam y. Cunningham 351 Merrick v. Brainard "75 Merrilield v. Cooley 33 Merrill y. Houghton 886 Merritt v. Bartholiok 68, 233, 397 Merrit y. Lincoln 698 MerrittY. Seaman 136, 328,633, 695 Mersey, etc. y. Gibbs 387, 389 Meserole v. Archer Wi Meserole v. Tynberg 445 Mesnil y. Dakin 438 Messmore y. New York S. &L. Co.. 319, 342 Met. Railway V. Wilson 349 Metropolitan Bank y. Lord 517, 536 Mettlestadt v. Ninth, etc 385 Meusch y. Meusch 561, 840 Meyer y. Kegel 833 Meyer y. Hibsher 841 Meyer y. Mahr 335 Michigan, etc. v. Bldred 403 Middlebrook y. Merchants' Bank 398 Middleton V. Sherburne 481 Midland, etc., y. Johnson. 376, 413 Mier y. Cartledge 531, 8iJ5, 847, 64'^ Mierson y. Hope 308, 668, 067 Millbank v. Dennisttjun 313 Milburny. Belloni 470 MUhan y. Sharp 443 Miller y. Baker 453 Miller v. Bear 115 PAaE. Miller v. Beekman 6S7 Miller y. Case 591, 802 Millery. Cook 168 Millerv. Deere 870 Millery. Baston 137 Miles V. Forbes 461 Miller y. Freeborn 6.37 Miller y. Gamble 698 Millerv. Gaeton 136, 137 Miller V. Losee 633, 717, 763 Miller v. Moore 799 Miller y. Stettiner 157, 1.58, 661 Miller y. White 97, 171 Millikin r. Cary 34, 35, 48 MiUikiny. Dehon 394, 685 Millikin y. Thorndike 365 Mills V. Brooklyn 687 Mills y. Garrison 560 Mills V. Lewis 376, 413 Mills y. Lynch 433 Mills y. New York, etc 385, 448 Mills y. Pearson 88 Miln Y. Vose 648 Milnor V. Metz 70 Milton Y. Hudson Kiver, etc .319 Minor v. Mechanics,' etc 133 Minor v. Terry 47, 50 Mitchell V. Hayne 355 Mitchell Y. Oldfleld 620 Mitchell y. Weed 794 Mitchell y. Williams 333 Moffatty. Strong 473 Monahan v. Story 71 Monelly. Burns 484 Monroe y. Reynolds 342, 445, 464 Monson v. Williams 204 Montague y. Bassett 333 Montague Y. Floeton 871 Monte Allegro, The '. 473 Montgomery County Bank v. Albany City Bank 774, 836 Montgomery y. United States 381 Moody V. JIayor 365 Moon Y. McKibbin 843 Mooney v. Hudson Riyer, etc 388 Mooney V. Misser 667 Moore y. Bennett 209,310 Moore v. Burrows 434 Moore y. Campbell 465 Moore Y. Cross 337, 338 Moore v. Bldred 458 Moore y. Hamilton, 104, 289 Moore y. Moore 347, 398, 4S9, 491 Moore y. Noble 193,331, 841 Moore y. Prance 113 Moore V. Quint 688 Moore y. Smith 140, 768 Moore y. Woolsey 693 Morehouse Y. Ballon 130, 131,137, 664 Morehouse Y. Crilly 308 Morewood y. Jewett 563 Morah y. McClearns 460, 869, 879 Moran v. Anderson 756 Moran y. Morrissey 340 Moran v. Rennard 469 Morange v. Morris 445 Moi'gan Y. Birnie 486 Morgan v. Groff 383 Morgan v. Leland 815, 830 Morgan v. Plumb 673 Morgan v. Rowlands 663 Morgan y. Skidmore 403, 403, 673 Morgan v. Thorne 353 Morley y. French Ill, 404 MorleyY. Law 661 Morrell V. Garrelly 388 Morrell y. frying I?ire Ins. Co 564, 832 Morris y. Ashbee 314 Morris Y. Bank of Bnglaud 373 Morris v. C'ra^yf ord 64 TABLE OF CASES CITED. XXIX PAG13. Morris V. Law 400 Morris t. Parlier 535, 540 Morris v. Tliird Avenue, etc 409 Morris V. Van Voast 683 Morris V. Wallcer 327 Morris v. Wrigiit 814 Morrison v. Biifhanan 334 Morrison V. Glas!2:ow Comm'rs 808 Morrow v. Campbell 890 Morrow v. Reed 891 Morse V. Aldrioli 480 Morse v. Peasant 334 Morss V. Jacobs 704 Morton v. Cameron 192 Morton v. G-loster 4fi0 Morton v. Woods 593 Moseley V. Alston 83 Moseley r. Marshall 407 Moseley v. Moseley , 69 Moseley V. Rendeil .' 339 Moses V. Banker 408 Moses V. Read.'. 471 Moses v. Sweet 890 Moses T. Trice 363 Mosey V. City of Troy 391 Moshier v. tltica, etc 390 Mosselman v. Caen 363 Mosser v. Corwin 842 Mosteller's Appeal 398, 488 Mott V. Burnett 517, 541 Mott y. Coddington 465 Mottv.Dunn ]38, 135 Mott V. Hudson River, etc 385 Mottv.Palmer 460 Mottrain v. Mills 72 Moule V. Garrett 398 Mount V. Derrick 323 Mount V. Lvon 885 Mo untford V. Holland 671 Mousler y. Harding 679 Mowers v. Tethers 872 Muohler y. Mulhollen 235,460 Mudgett y. Bay State, etc 409 Mudry y. Newman 300 Muir y. Leake, etc.. Orphan House 114 Muklan v. Doty 253 Mulhado y. Brooklyn, etc "fi'> Mullery. Eno 471, 473 Mullett y. Hunt 483 Mullett y. Mason 470 Mulligan v. Ellas 396 Mulvehall y. Millward 435 Mumford V. Brown 444 Mumford v. Oxford, etc 417 Mumford v. Sprague 114 Muncey v. Dennis 319 Munger y. Hess 351, 459 Munu y. Barnum 734 Munn v. Isle, etc 352, 431 Munn v. Mechanics 620 Munroe v. Baston 384 Munro y. Potter 681 Munsell v. Lewis ; 67 Murphy v. Ball 381 Murphy y. Carralli 374 Murphy y. Merchant 328 Murray y. Burling 458 Murray y. Hay 86 Murray v. Knapp 353 Murrayy. Mumford 146 Murray v. Smith 680 Murray v. Thomas 562 Muscott v.Bunge 483 Mussina v. Clark 253 Mutual, etc. v. Mayor, etc 443 Myatt v. Saratoga, etc., Ins. Co 547, 786 Myer v. Figel 564 Myersv, Burns 319,320,632, 694 Myers y . Davis 639 Myersv. Malcolm 345 PAGE. Myersv, Myers 142,335 Mygatt y. Wilcox 683 Myuders v. Snook 620, 661 Nashv, Fredericks Nash y . McCauley Nashv. Russell Nassau Bank y. Broadway Bank National, etc. v. Hart National, etc. v.Ingrahani National Bank V. Bangs National, etc. v. Fourth Nat. Bank Nayler v. Mortimore Naylor y. Winch Neale v. Sealey 451, Needham v. Frazer Neef us v. Kloppenburgh Neff V. Clute Neff V. Thompson Nelson v. Bostwick Nelson V. Clcugh Nelson v. Cowing Nelson y. Swan Nelson y. Von Bownhurst Nelthorpe V. Holgate Nesbitt V. Hilser Nesbitt V. Howe Neustadt v. Joel Neville v. Kelley Nevins v. Oepierres Newall V. Salman 630, Newall v. Tomlinson Newberry y. Garland Newberry V. James Newby v. Oregon Cent. R. R. Co Newcomb y. Brockett Newcomb v. Clarlc Newcomb v. Cramer Newell r. Fowler Newell y. Wheeler 356, Newman y. Alvord 446, Newman v. Bcvard of, etc 648, Newman v. Ogden Newman y. Otto 574, Newson v. New York, etc Newton v. Bronson Newton v. Pope Newton y. Wales 332, 410, New Bedford v. Chase New Haven, etc., v. Quintard 409, New Torlc, etc., v. Covert 307, New York, etc., v, Forty-Second, etc.. New York, etc., v. Merritt New York Cent. Ins. Co. v. Nat. Prot. Ins. Co New York Cent. R. R. v. Saratoga, etc . New York Cent., etc., Co. v. Schuyler. . . New York Dry Dock Co. v. Mcintosh. . New York Ice Co. v. Northwestern, etc., Ins. Co 40, 140, 374, Nichol V. Godts Nicholl v. Mason 363, Nichols v. Brown Nichols V. Diisenbury Nichols y. Jones .537, 541, .546, 547, 591, 593, 646, 647, 648, 6.50, Nicliols V. Michael 130, Nichols V. Middlesex, etc Nickerson v. Harriman Nicoll V. Nicoll Nicols' Case Niles V. Battershall Niles V. Perry Niles V. Randall Niles V. Smith Nixon V. Jenkins Nixon V. Nixon 394, Noble y. Holmes Nodiue v. Doherty Noel V. Isaac 309 150 111 308 "133 403 865 ;i34 394 376 564 482 777 389 453 323 486 470 149 888 337 305 402 138 420 663 623 377 445 353 859 703 168 394 344 293 447 733 313 761 303 563 204 563 680 409 466 787 430 110 798 378 465 363 m 638 566 773 309 .385 397 437 895 63 100 114 843 169 395 864 675 333 XXX TABLE OF CASES CITED. PAGE. NoelT.Murray 687,688 Nolton V. Western E. E. Co 795 Norbury v. Seely 611 Norris V. Kennedy 831 Northam V. Bowden 705 Northern Bank v. Wrij^ht 63 Northfleet v. Cromwell 393, 394 Northrop V. Burrows 686 North Western, etc., y. Sharp 298 North Western, etc., y. Whinray 440 Nortonv. Gary 161 Nortonv. Sewall 391 Norton v. Wiswall 365 Norton V. Woods 595 Nossery. Corwin 309, 842 Nottebohm y. Maas 6^ Nowlen y. Colt 444 Noxony. Bentley 786, 787 Noyes v. Clark 703 Nute V. Hamilton 677 Oakes y. Turquand 684 Oakley V. Aspinwall 361 Oakley V. Morton 180, 405, 566 O'Brien V. Hogan 99 O'Brien y. Lloyd 497 Ockford y. Barreli 668 Oertel v. Wood 314, 406 Offard V. Davies 344, 675 Ogdenv. Lee 101 Ogden V. Marshall 702 Ogdensburgh Bank y. Paige 735, 755 Ogilvie V. Knox, etc 684 Olcott V. Carroll 268, 804, 805, 806 Olcott y. Tioga E. E. Co 292 Olendorf y. Cook 230, 829 Oliver v. Oliver 366, 407 Olmsted v. Webster 402 Olssen V. Smith 353 Onderdonk V. Mott 228 Onkerdonk v. Emmons 463 Onderdonk-y. Voorhies 462 Ontario Bank y. Eoots 355 O'Reilly V. King 383, 431 O-'Heilly v.McChesney 478, 903 Ormsbee v. Brown 565, 656, 659 Ormsby v. Douglass 572, Orne y. Townsend Osborne y. Bobbins 663, Osby V. Conant 334, Osgood V. Layton 129, 339, Osgood v. Ogden Osgood V. Wittlesey 776, Osinoup y . Nichols Osterhout v. Lanning Ostrom V. Bixby 597, Oswald V. Mayor, etc Otisv. Cusack Otis V. Hitchcock Otis v. Boss. . . 265, 532, 545, 546, 598, 608, Otisv. Still 26, Outhout v. Ballard Overend v. Gibb Overend Gurney Co. v. Gibbs Overseers y. Beedle Overton v. Dunn Oviatt y. Hughes Owen V. Bowen Owen y. New York, etc Oxford v. Cronand 414, 696 261 670 380 411 129 830 294 325 649 440 460 785 768 783 631 695 313 884 101 390 184 486 374 429 293 P v.P Pack v. Mayor Pack V. Minot 695 Paolcer v. Eooh ester, etc 449, 4'78 Paddock v. Wing 75, 303 Paddow v. Williams 4.58 Paice V. Walker 292 Paige V. Willett 505, 561, 787 PAGE, Paine y. Packard 697 Paine y. Smith 765 Paine v. Voorhees 687 Palen v. Bushnell 141 Palen y. Johnson 192, 411 Palmer y. Andrews 564, 567 Palmer V. Avery 370 Palmer y. Davis 61, 133,757, 766 Palmer V. De Witt 406 Palmerv. Port Plain, etc., Plk.Ed.Co., 95 Palmer y. Jairmain 457, 843 Palmer v. Murray 104 Palmerv. North 170,349, 668 Palmer y. Palmer 294 Palmer y. Smedley 788 Pangburn v. Bull 139 Panlin V. Holland 449 Pardee y. Schenck 714, 781 Pardee V. Van Anken 413 Pardo V. Osgood 339, 618, 733 Paris y. Salkeld 887 Parish v. Tooker 414 Parell v. Half orty 7.38 Park V. Johnson 436 Park V. Morris Axe & Tool Co 470 Parker v. Bradley 698 Parker V. McClure 588, 664 Parker y. Meech 892 Parker y. Eaymond 209, 210 Parker v. Totten 173, 225 Parker v. Walrod 454, 863 Parkinson y . Hanbury 291 Parks V. Parks 58 Parmagioii v. Parmagiori 325 Parsons v. Briddock 43s Parsons V. Nash 630 Partenbeimer v. Van Order Ill Partridge v. Court 110 Partridge y. Gildermeister 304 Partridge'v. Haycroft 13 Partridge v. Menck 447 Partridge y. Partridge 466 Partridge v. Scott 449 Partridge v. Osborne 288 Passinger v. Thorburn 470 Patchinv. Peck 681,745, 831 Patience v. Townley 566 Patrick V. Coetriclt 450 Patrickv. Metcalf .381 Patten y. Gurney 143 Patterson v. Patterson 488, 843 Patterson v. Scott 373 Pattison y. Adams 216, 218 Pattison v. Guardians 690 Pattison y. Taylor 563 Paul V. Frazier 426 Paul y. Hafterty 337 Pauling V. Mayor, etc 487 Paulyy. Turnbull 488 Pavne v. Able 666 Payne y. Sheldon 860 Payne v. State 3'33, 681 Payson v. MacComber 572 Peabody v. Bloomer 630 Peabody y. Eoberts 413 Peachy V. Brown 335 Pearce v. Chamberlain 71 Pearce v. Morris 412 Pearl y. Deacon 698 Pearl v. Wells 6!)3 Pearse v. Pettis. . 309, 414, 445, 669, 700, 703 Peck V. Brown 3o.i, 310, 443, .5SS Peck v. Carpenter 444 Peckv. Cowing 661 Peck V. Elder 86 Peck y. Minot 588, 636 Peckv. Newton 330 Peck v.Tiffany 397, 672 Peclc y. Lemons 346 Pellecat V. Angell 675 TABLE OF OASES OITED. xxxx PAGE. Pelouze V. Stewart 485 Pendleton v. Empire, etc 491 Penn. V. Buffalo, etc 858 Penn. v. Ward 605 Penn. E. R. Co. v. Buntine 400 Pennington v. Gibson 4U7 People V. Albany, etc 14, 339, 408, 590 People V. Alberty 475 People V. Assessors 443 People, etc., v. Balcli 4-38 People V. Banlier 508, 701, 733, 774 People T. Bennett 159, 160, 454 People V. Bogart 469 People V. Bostwick 698 People V. Brandreth 632, 644 People V. Brennan 381 People V. Brooks 469 People V. Brotherson 333 People V. Call 450 People V. Campbell 664 People V. Clark 73,443 People V. Collins 483 People V. Commissioners 443 People V. Cram 631 People V. Cunningham 345, 346, 451 People V. Dolan 443 People V. Kelly 601 People V. Kerr 409, 443 People T. Laws 94, 409, 443 People T. Mayor 73, 230, 336, 436, 443 People V. McCumber 546, 648 People V. Miller 460, 877 People V. Miner 443 People y. New York, etc 437, 831 People V. Norton 94 People v. Schuyler 437 People y. Shall 166 People V. Superyisors 95,304 People V. Tioga Com. Pleas 65 People V. Townsend 94 People y. Troy, etc 96 People y. Vilas 440 People V. Walker 180,309 People y. Woods 101, 111, 832 People's Bank y. Adams 858 People ex rel. Tates y. Board of Town Auditors of Canajoharie 71 People ex rel. Buffalo 442 Perciyal y. Stamp 678 Perkins y. Coddington 317,3.52 Perkinsy. Giles 501, 563 Perkins V. Mitchell 696 Perlee y. Onderdonk 4:39 Perrin y. New York, etc 409 Perry V. Chester 620, 632 Perry y. Truefltt 446 Person y. Ciyer 313 Persons V. Warren 54, 93 Peters y. Delaplaine 894 Peters y. Whitney 484 Peterson y. Chemical Bank 25, 3118 Peterson y. Clark 475 Peyton y. Mayor 549 Phalen y. Dingee 135,136 Phelany. Alb. & Susq. E. E.;Co 487, 691 Phelps y. Sproule 289 Phelps V. Van Dusen 416 Pheno y. Poppenwell 693 Philips y. James 666 Phillips V. Berger 662, 663 Phillips y. Briard 319 Phillips y. DeGroat 448, 449, 450, 466 Phillips y. Doolittle 703 Phillips y. Duke of Bucks 337 Phillips y. Foxall 897 Phillips V. Gorham 24. 40, 631 Phillips y. Peters 206 Phillips V. Eens. & Saratoga E. E 880 Phillips V. Simmons 348 PhilUps y. Smith 474, 475 340 830 434 332 4.55 434 836 430 563 753 460 705 345 466 530 523 473 Phillips y. Sture Phillips V. Suydam 830, Phillips y. Thompson... Pliillipsy. Trull Phillips y. Wilpers 391, Phillipson y. Gibbons Pliincle y. Vaughn Phinney v. Phinney Phoenix Bank y. Donnell. . .236, 314, 350, 743, Pi ckard v. Collins .. 335, 305, '368, 396, 455, Pickering y. Eudd 451, Pierce y. Dart Pierce v. Tuttle 230, 331, Pierson y. Boyd Pierson v. Cooley Pierson y. Hoag Pierson y. Hutchinson.. Piggott y. Kemp Pikey. Van Wormer 149,309, Pilie y. New Orleans Pilmor y. Branch Bank Pinchin y. London, etc Pinokney y. Wallace Pincomtae y. Rudge Pindar y. Black Piney. Smith Piper y. Poppenhausen Pitcher y. Turin, etc Pitt y. Gentle Pitts y. Congdon Pitts y. Hunt Pixley y. Clark 477, Place y. Butternuts Plan+, y. Schuyler 653, Piatt y. Stout 70, Piatt y. Walrath Piatt y. Wells Plumb y. Harrop Plumb y. Whipples Plummer v. Webb Plowden y. Thorp Pollak y. Gregory Pollen y. LeRoy ■Pollock y. National Bank .... — Pollock y. Stables Pond y. Leman Popenhousen y. Seeley Popplewell V. Pierce Port Carbon, etc., y. Groyes Porter y. McCready Porter y. Parks Porter y. Williams Post y. Hoyer 313, Post y. Martens Post y. Pearsall Pottery. Carreras Potter y. Commissioners Potter y. Dayis Pottery. Kitchen Potter y. McCready Potter y. Merchants' Bank Potter y. Seymour Potter y. Van Vranken 69, Poultney v. Randall Powell y. Deyeney Powell V. Finch Powell y . Smith Power y. Hathaway HI, 325, Powers y. Stanton 395, Pozzoni y. Henderson Prater y. Miller 349,668 Pratt y. Foote 690 Pratty.Hill 332 Pratt y . Patterson 305 Pratt V. Potter 225, 451, 460, 475, 704 Prentice v. Harrison 873 Prentiss y. Farnham . . . , 431 Prescott y. Dole 270 Presoott y. Williams 478 210 418 428 451 645 317 157 692 441 383 437 438 875 480 793 em 382 169 668 820, 821 350 343 335 319 427 464 294 474 339 481 415 480 736 341 95 533 596 389 384 464 350 375 680 396 453 XXXll TABLE OP CASES CITED. PAOE. Present v. Bangs 418 Price V. Hewett 351 Price V. Martin 866 Price V. Mount 707 Pricliard V. State 362 Prince Albert v. Strange 407 Prince v. Cujas 360 Prince V. Nicholson 887 Priudle v. Oarutliers 176, 615, 517 Proctor V. Hodson 708 Provost, etc., V. Hailett 364 Prudden v. City of Locliport 154, 831 Pruitt V. Miller 418 Pruyn v. Comstock 683 Pugsley V. Aikin 110, 145, 263 Pugsley V. Murray 305 Pulen V. Reynolds 336, 337 Puller V. Easton 904 Pullman V. Mayor 443 Pulver V. Harris 697 Pumpelly v. Phelps 393 Purchase v. Bellows 437 Purdy V. Carpenter 311, 580, 765 Purves V. Moltz Putnam v. De Forest 713, 726 Quaokenbush v. Ehle 673 Quackentaush V.Leonard 663 Queen v. Babcock 819 Queen v. Stoke, etc 490 Quick V. Grant 559 Quigley V. Walter 122 Quin V. Chambers 651, 654 Quin V.Lloyd 529,564 Quin V. More 391 Quintard v. Newton. . . 192, 331, 368, 469, 749 Quirk V. Holt 386 Rae V. "Washington Mutual Ins. Co Radcliff V. Mayor Kadley V. Houghtaling 288, Radwayv. Mather 371, Railroad Co. V. Harris Railroad Co. v. Kelly Ramaley v. Leland Ranay v. Alexander Randall v. Crandall Randall v. Snyder Randall v. Sweet Ranger v. Great W. Ey. Co 391, 487, Ranney v. Smith 176, 365, Raaor v. Clark Ransom v. Nichols Raphael v. Thames Eatcliff v. Davis Rathbon v. McConnell Rathbone v. Stedraan Rathbun v. Rathbun 433, Raymond v. Fitch Rayner V. Clark Rawson v. Morse 450, Rawson V. Rawson Rawstone v. Parr Rawston v. Taylor Ray v. Adden Ray V. Ayres 364, Ray V. Thompson Raymond v. Fitch : Raymond v. Minton Rayner v. Clark 734, 753, 788, Rea V. Sheward Eea, etc., v. Smith 872, Reabv. McAllister 625, 636, Read v. Jawdon Read v. Kennedy Bead v. Pope 208, Reade v. Sweetzer 135, Ready v. Stewart Reason V. Wiednian Rector, etc., v. Crawford PAGE. Rector of Trinity Church v. Hlggins... 303 317 Rector, etc. , v. Mayor, etc 466 Reddo V. Norman 446 Redflold V. Middleton 401 Redfield v. Supervisors. 443 RedHeld V. Tegg 305 Re U. S. Company 303 Reed V. Bank of Newburgh 839 Reedv. Board, etc 179 Reed v. Watson 630, 649, 650, 651 Reed v. Stryker 109, 143 Reed v. Randall 435 Rees V. Berrington 698 Reesv. Watts 695 Reformed, etc., v. Brown 437, 438 Reformed, etc., v. Parkhurst 430 Reg. V, Barret 365 Reg. T. Bolroyd 469 Reg. V. Chamberlain 391 Reg. V. Dant 296 Reg. V. Light 334 Reg. V. Spencer 391 Keg. V. Walker 333 Reid V. Evergreens 83 Reid V. Gifford 108 Reid y. Stryker 140 Reilly v. Ruoker 717, 763 Reimers v. Ridner 405, 435 Reiners v. McDonald 434 Relyea v. Beaver 223 Remsen V. Beekman 697 Rens., etc., Co. v. Wetsel .. 246, 248, 249, 593, 594 Renwick v. Cooper 103 Requa v. Holmes 99, 102 Requa v. Guggenheim 175 Revick v. Kern 479 Resor V. Johnson 489 Reubens V. Joel 34 Rex V. McDaniels 483 Rex V. Hopkins 400 Rexv. Kelderby 676 Rexv. Soper 400 Rex V. Stanton 408 Reynall v. Sprye 353 Reynolds V.Doyle 874 Reynolds v. Dunkirk, etc., R. R. Co 507 Reynolds v. Freeman 795 Reynolds v. Reynolds 335 Reynolds v. Schultz 395 Reynolds v. Shuler 458 Reynolds v. Sweetzer 347 Reynolds v. Ward 169 Reynolds v. Welch 339 Reznor v. Webb 73, 76, 3Vi3 Rheelv. Hicks 378 Rhoades v. Woods 129 Rhodes V. Bate 336 Ricart v. Townsend et al 119 Rice V. Bunce 394 Rice V. Dewey 438 Rice V. Hollenback 663 Rice V. O'Connor 760 Rice V. Shepherd 348 Rich V. Baker 461, 474 Rich V. BasterJield 365 Richard v. Manhattan, etc 677 Richard v. Stanton 491 Richards v. Edrick... 226, 256, 257, 756, 806 Richards v. Warring 135, 337, 338 Richardson v. Carpenter 165 Ricliardson v. Dubois 348 Ricliardson v. Hastings 97 Richardson v. Jackson 703 Richiu-dson v. Larpent 83 Ricliardson v. Mead 75 Richardson V. Northrop t;;i7 Richardson V. Wilton 371, 541, 543, tu'vj Richmond, etc. v. Vanderbilt 376 TABLE OF CASES CITED. XXXlll PAGE. Rlchmondville Union Seminary f. Brownell 437 Riciiterv. Poppeniiausen 441 Kichtmyer V. Hasidns 547, 788 Riciitmyer v. Morse 4fi0 Kiclitmyer V. Heirasen 71, 533, 8:31 Riclitmyer v. Riohtmyer. . 103, 110, 745, 740 751, 7tiB Ricket V. Raiiway 345 Ridder v. Whilioclt 159, 193, 221 Rider v. Mason 411 Rider v. Pond 389 Ridgway v. Bullvley 98, 103 Rinchey v. Strylier 128, 565, 864 Ring V. Steele 168 Eipiey v. iEtna Ins. Co 677 Ripple V. Gilborn 63, 111 Risingv. Dodge 398 Ritchie V. Garrison 149, 606 Ritter v. Cushman 393, 685 Roach V. Lalarge 288 Roach V. New Yorlc, etc 677 Roache v. Johnston 407 Robbins v. Luce 703 Robbins v. Mount 351, 364, 865, 459 Robbins v. Ricliardson 830 Robbins V. Wells 97, 387, 388, 774 Roberts V. Bury Commissioners. .. 406, 489 493 Roberts v. Carter 437 Roberts v. Fisher 378, 662 Roberts v. Good 505 Roberts v. Morrison 176, 79 i, 794 Roberts V. Randel 130 Roberts v. Rose 444, 679, 688 Roberts v. White 404, 623, 679 Robertson v. Smith 402 Robinson v. Chamberlain 70, 311 Robinson v. Corn Exchange 516, 633 Robinson v. Cushman 398, 488 Robinson v. Davidson 490 Robinson v. Frost 515, 524, 798 Robinson V. Judd 713, 73i, 736, 763 Robinson v. Plimpton 463 Robinson v. Raynor 398, 488, 489 Robinson v. Robinson 132, 373 Robinson v. Ryan 413 Robinson V. Smith 109,569 Robinson v. Stewart 317, 866 Robinson v. Trull 483 Robinson v. Weelts 66 Robinson V. West 316 Robinson v. Wheeler 475, 566 Robinson v. Woodgate .539 Robson V. Drummond 486 Robson V. Whittingham 353 Rochester City Bank V. Suydam 33, 25 38, 41, 109, 348 Rochester, etc., R. R. Co. v. Beckwith,. 826 Rocks V. Atease 703 Rockwell V. Brown 139 Roddy V. Williams 113 Rodee v. Wade 343 Rodgers V. Jones 140 Rodick V. Gandel 498 Rodriqu: s V. Meihuisli 375 Roe V. Hawson 473 Roe V. Martin 466, 597 Roe V. Rodgers 585 Roe V. Washington Mut. Ins. Co 794 Roeder v. Ormsby 320 Rogers v. Hogan 486 Rogers v. Inhabitants, etc 441 Rogers v. Langlord 335 Rogers v. McLean Iij8 Rogers v. Patterson 102 Rogers v. Rogers Ill, 831, 833 Rogers v. Taylor 417 Rogers V. Traders' Ins. Co 73, 115 Rogers v. Van Hoesen 394 E Rome Exchange Bank v. Bames. . . Rood V. New York, etc Rooney v. Alexander Rooney y. Second Av. R. R. Co . . . Root V. Foster 343, Root V. Marine PAGE. 338, 4U 561, 787 466 .... 566 437 244, 248 96 Rorke v. Russeli 97 Rosboro V. Peck 833, 840 Rosooe V. Maison 61, 282, 711 Roscorla v. Thomas 472 Rose V. Bell 337 Rose V. Daniels 663 Rose V. Rose 489 Rose V United States Telegraph Co . . . 74 Rose V. Watson 366 Rosebrooks V. Dinsmore 564,841 Rosenthal v. Brush 585, 587 Rosevelt v. Draper 443, 44.3 Rosevelt v. New York, etc 701 Ross V. Cassidy 130, 309 Ross V.Mather 193,231 Ross V. Mayor 391 Ross V. Union Pacific, etc 431 Rosseter v. Cooper 484 Roth V. Palm er 141, 191, 669 Roth V. Sloss 838, 834, 839 Roulston V. McClelland Rowan v. Lytle 693 Rowe V. Smith 54 Rowe V. Stevens 8.55 Rowland v. Phalon 180, 309 Howies V. Senior 300, 453 Ruddock V. Low 391 Rue V. Perry 863 Ruse V. Mutual Benefit Life Ins. Co. . . 436 Russell V. Allen 443 Russell V. Buck 169 Russell V. Butler 831 Russell V. Carrington 343 Russell V. Clapp 369, 537, .538, 569 Russell V. Pistor 468 Russell V. Spear 89 Russell V. Stewart 418, 423 Rust V. Bckier 435 Rust V. Morse 333 Rutter V. Puckofer ,58 Ryan V. Fowler 37 Ryclimanv. Giilis 899 Ryder v. Hulse 339 Ryder V.Jenny 430,563,843 Rylands v. Fletcher 386, 478 Sagary v. Dubois 336 Sage V. Mosher 388 Sallinger v. Rusk 533, 545 Salmon V.Webb - 693 Salters V. Genin 833 Salters v< Ralph 161 Sampson v. Henry 448 Samuel V. Haliday 109, 315 Sanders v. Coward 811 Sanderson v. Goodrich 675 Sands v. St. John. . 300, 307, 255, 531, 533, 7.54 Sanford v. Mayor, etc 467 Sanford v. Sinclair 388, 8.56 Sanquirico v. Beneditti 353 Sarah, The 301 Sargent v. Blunt 843 Sarles v. Sarles 478 Sarsfleld v. Van Vaughner 34, 737 Satterlee v. Frazer Saunders v. Bate 839 Savage v. Perluns 458 Savage V. Taylor 367,434 Sawner V. Schoon maker 809 Sawyer v. Chambers %^ Sawyer v. Fernold 169 Sawyer V. Haskell 344 Sawyer v. Jackson 395 XX XIV TABLE OF CASES CITED. PAGE. Sawyer- V. Lvon 168 Sawyer v. Warner 2m, 5-'.5, H12 Sayles v. WoocUn 271, 672, 57a, !)81 Sayres v. Walsh 29.5 Scamaran v. Chicago 34.'i SchaeEer V. Herb 84-2 Schafer V. Farmers, etc 327 Schaffer v. McKee 3.34, yaO Schaus V. Putscher 346 Soheive v. Kaiser 303 Sohemerhorn v. Buell 450 Schemerhorn v. Van Voast 460 Schencic v. Campbell 317, 35.2 Schenok V. EUingwood 94 Schenck v. Naylor 183 Schermerhorn v. Van Allen 561, 587 Schermerhorn v. "Wood 831 Schieffelin V. Hawkins 629 Schlussel V. Willett 564,787 Schmidt v. Hurforth 683 Schneider V. McLane 333 Schneider v. Schiiltz 585, 596, 597 Schock T. Garrett 884 Schofleld V. Hernandez 490 Schoaeld V. Van Syckle 662 Scholefleld v. Templer 897 Schooner v. Ourust 410 Schooner Hoppett v. United States 787 Schoop y. Clarke 192 Schroeppel v. Corning 458, 459 Schroeppel v. Hopper 434 Scliroeppel v. Shaw 438 Schubert v. Harteau 620 Schulhardt V. Kemiero 102,103 Schullhofer v. Metzger 348 Schuneman v. Palmer 347 Schuyler v. Marsh 326 Schuyler v. Russ 471 Schwab V. Furniss 733 Scofleld V. Whitelegge 309, 310, 857 Scott V. Buncombe 100, 770 Scott V. Guernsey 444, 745 Scott V. Mayor 387 Scott V. Rogers 312 Scott V. Spears 620 Scott V. Stansfleirt 580 Scott V. Uxbridge, etc 701 Scott V. Warner 378 Scoyell ¥. Howell 593, 810 Scoville y. Now 601 Scranton v. Ba.xter 302 Scranton v. Clark 473 Scribner v. Kelley 295 Scroggin v. Holland 632 Scudder v. Gori 683 Seabrook y. Hector 385 Seacord y. Morgan 461 Seager v. Slingerland 892 Seaman V. Low 843 Searle v. Lindsay, etc 376 Sears V. Conover 71,179 Seayey y. Seayey 489 Secor V. Keller 118 Secor V. Roome 252 Seddon y. Connel 112, 113 Seeley y. Bngle 605 See V. Partridge 139, 276 Seeley V. People 698 Selby y. Selby 366 Selden v. Eden 303 Selden v. Pringle 369 Semmes V. Hartford, etc 677 Seneca Co. Bank y. Garlinghouse 819 Seyerance v. Griffith 233, 298 Seward v. Miller 647, 652, 772 Seward y. Miller 772 Sexio y. Provezendo 446, 447 Sexio y. Zett 384 Sexton y. Sexton 874 Seymour v. Cook 354 PAGE. Seymour v. Cowing 698 Seymour v. Wilson 339 Shal'er v. Humphrey 161 Shafer y. Loucks 370 Shaler, etc., y. Brewster ICO Sharp V. Ashton 831 Sharp V. Cropsey 398 Sharp y. Freeman 339 Sharp V. Simons. 841 Sharp y. Warner ... .' 6.31 Sharp V. Wright 349 Sharpe v. Johnson 406, 410, 426, 691 Shayer v. Brainard 88 Shayer y. McGraw 131 Shaw y. Beveredge 451 Shawy. Davis 330, 671 Shaw y. Jane 248, 266 Shaw y. Jeffrey 867 Shaw V. Laud 383 Shaw V.Tobias 463 Shear v. Cutler 475 Sheehan V. Hamilton .588 Sheehy y. MandeviUe 402 Shelden y. Carpenter 139 Sheldon y. Adams 150, 151, 594, 832 Sheldon y. Edwards 460 Sheldon V. Hayens 98 Sheldon v. Lake 139 Sheldon v. Sherman 422, 451, 491, 492 Sheldon y. Weeks 325 Shepard v. Greaves 498 Shepard v. Merrill 552 Shepherd v. Beecher 304 Shepherd v. Greaves 118 Shepherd v. Walker 737 Shepherd y. Young 399,489 Shepley v. Rangeley 408 Sheridan V. Bean 454 Sherman v. Barnard 668 Sherman V. Brandt 339 Sherman y. Bushnell 648 Sherman V. Johnson 379 Sherman v. Mayor 486 Sherman v. New York Central Mills ... 533 642, 546, 650, 654 Sherman v. Willett 464 Sherman v. Wright 871, 893 Sherwood v. Andrews 449 Sherwood V. Seaman 365 Shibley v. Angle 123, 438, 770 Shields v. Pettie 424 Shipley y. Fifty Associates 392 Shirley v. Bennet 904 SJioemaker v. Benedict 681 Shoemaker v. Board of Commissioners 898 Short y. Barry .561 Short V. Hooker 254, 665 Shorty. Knapp 389 Shrewsbury, etc., y. North Western, etc 431, 697 Shullv. Green 565, 704 Shull V. Ostrander 903 Siemon v. Schurck 636 Silliman v. Eddy 615, 711 Silsbee v. Smith 412 Silsbury v. McCoon 460 Silsterv. Smith 637 Silvernail y. Cole 169, 668 Simon v. Kaliske 342, 382, 464 Simond v. How 865 Simmons V. Cloonan 478 Simmons y. Eldridge 801 timmons v. Fairchild 149,. 607 immons v. Law 319 Simmon v. Sisson 616 Simonson v. Blake 274 Simpson v. French 701 Simpson v. Hart 620 Simpson v. Hornbeck 462 Simpson v. Loft 713, 736 TABLE OF CASES CITED. XXXV PAGE. Simpson v. Lord Howden 408 Singer v. Trautman 697, 698 Sipperley v. Troy & Boston K. R. Co. . . 367 594, 609 Sliillett V. Fletcher 440 Slcillin V. Merrill 384 Skiner v. Stuart 129 Skinner v. Oettinger 138 Skinner V. Tinker 403 Skinner v. White 400 Slackv.Brown 344, 701 Slack V. Heath 461, 462 Slant V. Steamboat Ohio 865 Slater v. Franks 438 Slauson v. Englehart 388 Slingerland V. Morse 702 Slipper V. Stidstone 146 Sloan V. Van Wyck 694 Slocum V. Barry 437 Slocum V. Hooker 118, 498 Slocum V. Wheeler 733, 734 Sluyter v. Williams 309 Sly V. Edelev 391 Small V. Graves 341, 666 Small V. Ludlow 168 Small V. Sloan 70 Small V. Smith 698 Smart V. Bement 591, 803 Smart V. Borst 497 Smith V. Allen 373 Smith V. Atlantic, etc 498 Smith V. Applegate 687,688 Smith V. Babcock 666 Smith V. Barron 146 Smith V. Brady 486, 487 Smith V. Briggs 486 Smith V. lirown 180, 760, 768 Smithy. Countryman 340,337, 654 Smithy. Crouse 463 Smith V. Dixon 878 Smith V.Devlin 693 Smith y. Downing 360 Smith V. Felton 437 Smith V. Fletcher 903 Smith V. Gage 434 Smith y. Gardner 413 Smith V. Geortner 110 Smith V. Great Eastern Railway 395 Smith V. Greenin 546, 591 Smith V. Hallock 33, 136, 138, 143 Smith V. Kay 337, 481 Smith V. Knapp 353 Smith V. Lasher 540 Smith V. Leland 195 Smith V. Lewis 483 Smith V. Lippincott 304, 840 Smith V. Lockwood 338, 747 Smith V. London, etc 386,388 Smithy. Marvin 467 Smith V. Mawhood 172, 565 Smith V. Mayor 381, 382 Smith V. Mercer 191 Smith V. Miller 191 Smith V. Moore 418 Smith V. Mulock 403 Smith V. Oliphant 351 Smith V. Orser 141, 401 Smith y. Reeves .565, 656 Smithy. Roche 426 Smith y. Sherman 71 Smith V. Smeltzer 703 Smith V. Smith. . . . 313, 481, 664, 673, 703, 866 Smith V. Stewart 466 Smith V. Thackerah 449 Smith V. Tiffany 323 Smith V. Trafton 368 Smitii V. Whilden 418 Smithy. White 497 Smith V. WllBon 340, 390 Smith V. Wright 304, 311 PAfiE. Snelling v. Howard 392 Snowy. Fourth National Bank, 691, 770, 887 Snow V. Howard 661 Snow V. Moore 883 Snow V. Judson 314, 337, 738 Snyder v. Goodrich 316 Snyder v. Sponable 394 Snyder v. White 325, 517, 535, 823 Societe General v. Metropolitan Bank, 673 8B5 Soils v. Manning 344 Solomon v. Wass 34 Solms v. Lias 346, 310 Somes y. Directors, etc 468 Sortore v. Soott 872, 884, 897 Soule V. Union Bank 390 South v. Tanner 630 Southall V. Eigg 231 Southcote V. Stanley 486 Southworth v. Curtis 381, 745, 791 Southworth v. Smith 703 Southworth v. Van Pelt 575 Spalding V. Spalding 143, 147, 823 Spalding v. Hallenbeck 317 Sparks v. Farmers' Bank 441 Sparks v. Leavey 694 Spear v. Hart 505, 555 Spelman v. Welder 734, 777, 781 Spencer v. Dearth 673 Spencer V. McGowen 450 Spencer v. Spencer 313, 481 Spencer v. Tooker 819 Spencer V. Wheelock 135 Speckler v. Clancy 691 Spier V. Robinson 137, 141 Spies V. Gilmore 344 Spittler V. James 698 Spooner-v. Baxter 393, 394 Spooner v. Brooklyn, etc 390 Sprague v. Duel 335 Spra^ue v. McKensie 857 Sprigge V. Sprigge 481 Spring V. Sandford 400 Springer V. Dwyer 886 Springfield, etc. v. Allen 439 Springstead v. Lawson.. .. 113, 193, 331, 472 Sprootv. Porter 438 Squier v. Hunt 523 Squire v. Flynn 253 Squire v. Hurder 435 Squire v. Norris 292 Squire v. Whitton 304, 999 St. Felix v. Rankin 400 St. Johns y. Croel 831 St. John V. Griffith 184, 195 St. John v. Northrop 330 ■ St. Paul's Church v. Ford Ill Stack v. Bangs 882 Stacy v. Graham 323 Stafford v. Brown 592 Stafford v. Gold 145 Stafford y. Hewlett 284 Stafford v. Ingersol 454 Stafford v. Mayor 784 Stagg y. Alexander 662 Stall y. Stahl 441 Stancliff v. Hardwick '. 565 Stanford v. Waver 633 Stannard v. Eytinge 193, 340, 848 Stannard v. Mattice 63, 283, 749 Stanton v. Leland 70 Staples V. Anderson 633 Stapp V. Bull 139 Starbird v. Barron 319 Star Steamship Co. V. Mitchell 833 Startup y. Curtazzi 331 Startup V. McDonald 885 State V. Peck 895 State V. Pepper 89, 698, 896 State v. Phoenix Bank 338, 339 XXXVl TABLE OF CEASES CITED. PAGE. State V. Worara 661 Steamboat Orleans v. Phoebus 261 Stebbins V. Howell 366 Stebbiiis v. Palmer 71 Steele v. Haddock 684 Steele v. Smith 395, 375 Stellor V. Nellis 697 Stephens v. BeConto 4i7 Stephens V. Hall 591, 803 Stephenson V. Hart 307 Stephenson v. Stephenson 58 Sterling V. Dundon 685 Stern v. Drin ker 306 Sterns v. Tappan 307 Stevens v. Brooks 481 Stevens V. Curtis 4.54 Stevens v. Hunt 703 Stevens v. Low 693 Stevens v. Midland, etc 371 Stevenson v. Buxton 843 Steward v. Young 439 Stewart v. Beebe 336 Stewart v. Bouton 346 Stewart v. Cuyler 487 Stewart v. Drake 685 Stewart v. Foster 411 Stewart v. Hutchinson 413 Stewart v. Isidor 388 Stewart v. Keteltas 486 Stewart v. McKean 699 Stewart v. Travis 301, 717, 718 Stewartson v, Lathrop 676 Sticltney v. Blair 787, 801, 803, 807, 849 Stierneldv. Holden 457, 843 Stikeman v. Dawson 351 Stiles v. Comstock 573, 575, 597 Stiles V. Granville 399 Stiles V. Hooker 480 Stillman V. Mitchell 304, 305 Stillman v. Squire 437 Stimson v. Hall 694 Stimson v. New York, etc 385 Stockbridge, etc., v. Hudson R.R.K. Co., 889 Stockbridge Iron Co. v. Mellen 150, 594 Stockbridge v. Schoonmaker 703 Stockley v. Hornidge 371 Stockport, etc., v. Potter 480 Stoddardt v. Cleveland 437 Stoddard V. Dennison 413 Stoddart v. Onondaga Annual Confer- ence 510,511,540, 733 Stoker v. Coggswell 407 Stokes V. Brown 394, 395 Stokes V. Cox 677 Stokoe V. Robson 310 Stone V. Browning 675 Stone V. De Puga 249 Stone V. Flack 874 Stone V. Frost 898 Stone V. Hooker 393 Stone V. Sprague 703 Stoppani v. Richards 169 Storerv.Coe 168 Storrs V. Citv of Utica 387 Story V. Conger 376, 413 Story V. Livingston 80 Story V. New York & H. R. R. R. Co ... 319 Story V. Furman 141 Story V. Johnson 401 Story V. Winsur 5613 Stover V. Eycleshiiner 67 Strang v. Newlin 396 Stratton v. Davidson 739 Straus V. foung 870 Street v. Holvoke 391 Streety V. Wood 69G Striker v. Lynch 337 Strong V. Blake 700 Slrnng V. Swift 365 Strong V. Strong ;?35 PAGE. Strong V. Wheaton 88, 89 Stranks v. St. Johns 474 Stratton v. Pettit 405 Stryker v. Lynch 114, 400 Stryker v. Mott 400 Studdy V. Saunders 434 Sturtevant v. Brewer 88 Sullivan v. Frazee 496 Sully V. Frean 698 Sunderlin v. Bradstreet 696 Supervisors v. Briggs 468 Sulten V. Cronin 433 Supervisors of Galway v. Stimson 95 Supervisors V. Morgan 304 Susquehanna Bank v. Supervisors 443 Sutherland v. Rose 100,310,412,437, 637 Suydam v. Holden 366 Suydun v. Jenkins 70, t>94 Swan v. Tappan 367 Swan V. Wilkinson 663 Svrain v. Heartt 351 Swain v. Mizner 397 Swartwout v. Burr 434 Swatzel v. Arnold 388 Sweet V. Colts 477 Sweet V. Ingerson 143 Sweet V. Tuttle 496 Sweetman v. Prince 473 Swift V. Applebone 365, 394 Swift V. Davitt 765 Swift V. Dey 447 Swift V. Drake 754 Swift v. Poughkeepsie 441 Swift V. Vaughn 784 Symm v. Frazer 397, 433 Symonds v. Atkinson 313 Symonds v. Barnes 666 Taber V. Gardner 381, 666 Tabor v. Bradley 478 Tabor v. Robinson 451, 475, 704 Talf Vale Railway Co. V. Nixtfn 391 Talbot V. Bank of Rochester 334 Talley V. The Great, etc 409 Tallmadge v. East River Bank 317, 3.>3 Tallmadge v. Wallis 333 Tallman V. Green 163, 338 Tallman v. Turck 333 Talmage v. Pell 339 Tancred v. Allgood 417 Taucred v. Christy 406 Tate V. Williamson 336 Tatterson v. Suffolk 6'i 5 Taunton v. Royal Ins. Co 109 Taussig V. Hart 855 Taylor v. Baldwin 444 Taylor v. Bates 323 Taylor v. Bradley 333, 397 Taylor v. Brewer 486 Taylor v. Church 696 Tavlor v. Corbiere 173, 806 Taylor v. Crane 330 Taylor v. Crowland 676 Taylor v. Jaques 670 Taylor v. Jennings 564 Taylor v. Luther 516 Taylor v. Porter 418 Taylor v. Laird 483 Taylor v. Ramsey 366 Taylor v. Richards 499, 605, 661 Taylor V. Root 630 Tavlor V. Salmon 83 Taylor V. Taylor 104 Tell V. Beyer 745 Temple V. Bacchus 703 Temple v. iMurry 517, 535 Tenant v. Goiding 346 Terret V. Orambie 901 Terry v. Chandler 704 Terry v. Dayton 664 TABLE OF CASIOS CITED. XXXV 11 PAGE. Terry v. Hutchinson 425 'J'yrwilliger v. Beals HU.") Tervvilliger v. Wheeler 'Z^ys Thacher v. Bancroft 103 Thauher v. Morris 4y6 Thaclier v. Henderson 868, 889 Tliatoher v. Candee 94, 770 Thatcher v. England 418 Thayer V. Willett 128 Thayer v. Wright 4f>0 Thomas v. Allen 303 Thomas v. Axworth 210 Thomas V. Beebe 337 Thomas V. Bennett 57, 93 Thomas v. Craft 451, 474 Thomas V. Fleury 487 Thomas V. Harrop 600 Thomas v. Morgan 395 Thomas v. Ehymney 388 Thomas v. Winchester 391 Thompson v. Acer 537 Thompson v. Burnett 5B4 Thompson v. Dudley 100 Thompson v. Erie Ry. Co 546, 648, 650 Thompson v. Farago 858 Thompson v. Greenwood 496 Thompson V. Hall 698 Thompson V. Hooker 623 Thompson v. Howe 97, 193, 376 Thompson v. Otis 378 Thompson v. Sickles 633, 680 Thompson v. Tioga E. E. Co 393 Thompson v. Wood 485 Thorm v. Germand 831 Thorn v. Moser 696 Thorn v. New York Central Mills 638 542, 547, 649 Thorn v. Pitt 102 Thornton v. Simpson 394 Thorp V. Keokuk 407 Thorp V. Ross 406, 467, 493, 494 Thorpe v. Thorpe 169 Threlfall v. Berwick 354 TlH-ings V. Central Park, etc 385 Throop V. Hatch 308,436 Thumb V. Walrath 605, 812 Thurber V. Jenkins 699 Thurman V. Stevens 306 Thurston v. King 103 Thurston v. Marsh 701 Tibbets V, Ayer 695 Tibbitts V. Blood 97 Tibbitts V. Piercy 125 Tibblesv. O'Connor 463 Tideyv. Mollett 405 Tidman V. Ainslie 678 Tilt V. Tilt 294, 295, 375, 399 Tillertson v. Race 664 Tillotson V. Boyd 468 TiUots V. Wolcott 330, 411 Tilton V. Alcot 663 Timan v. Leland 366 TisHothy v. Simpson 333 Tinney v. Stebbins 444 Titsworth v. Hyde 663 Tobias V. Howland 320 Toland v. National, etc 455,457, 841 Toledo, etc., v. Pindar 393 Tollett V. Sherstone 218 Tomlinson v. Rowe 437 Tommisierv. Carsard 527 Tompkins V. Acer 525 Tompkins V. Dudley 676 Tompkins y. Hyatt 435 Tompkins v. White 140, 145 Toms V. Wilson 410 Ton n elle V. Hall 169 Tooker v. Oakley 117 Tooms V.Alexander 305 Toplis V. Crane 293 PAOE. Torrey v. Bank, etc 468 Torry V. Eadley ;i-14 Toscall V. Horslay SST Toulandou v. Lachenmeyer 680 Toulmin v. Price 369 Tower v. Uticu, etc 409 Towle V. Smith 6ti4 Town V. Needham 400 Town V. Stetson 447 Townend v. Toker 430 Towner v. Tooley 81, 110 Townsend v. Corning 225 Townsend v. Hubbard 393 Townsend v. Piatt 565 Townsend v. Townsend 140, 232, 326 Townsend v. Walthen 296 Townsend v. Wesson 864 Tozer v. Child 469 Tracy v. Albany, etc 702 Tracy v. Humphrey 803 Tracy v. New ^ork Faucet Co., 309, 611, 635 Tracy v. Stone 610 Traders' Bank v. Gardner. . 58, 111, 169, 404 Tradesman's Bank v. Hyatt 540 Traphagen v. Traphagen 433 Trask v. Payne 429 Traver v. Eighth Av. R. R. Co. . 158, 486, 499 563, 861 Travis v. Banger 562, 564, .567 Travis v. Jenkins 473 Travis v. Tobias 63, 156 Treadwell v. Bruder 563 Treadwell v. Fassett 282 Treadwell v. Joseph 261 Treasurers v. Bates 402 Tripp V. Riley 443 Troup V. Haight 618 Troup V. Smith's Ex'rs 681 Troy and Rutland E. R. Co. v. Howe. . . 799 Truslow V. Putnam 367 Trustees v. Cowen 80 Trustees v. Garvey 437 Trustees v. Kellogg 110 Trustees v. Robinson 437 Trustees v. Stewart Ill, 415, 437 Trustees, etc., v. Youmans 478 Tubbs V. Caswell 733 Tucker v. Newman 451 Tucker y. Rushton 199, 205 Tucker v. Tucker 313, 481 Tuclierman v. Brown 334, 684 Tulk V. Moxhay 317 Turley v. Bates 3 13 Turner v. Bank 191, 662, 663, 688 Turnery. Collins 335 Turner v. Jones 293 Turner v. Mason 490 Turner v. Eoby 308, 363 Turnery. Simpson 717, 763 Turner v. Smith 401 Turner v. Taylor 391 Turner v. Turner 876 Turner v. Walker 419 Tuttle V. Smith 159,161 Tylerv. Ames 904 Tyler v. Barrows 71 Tyler v. New Amsterdam, etc 439 Tyler v. Stevens 632 Underhill v. Crawford 359 Underwood v. Green 687 Union, etc. v. Sixth, etc 377, 378 Union Bank v. Bassett 831 Union Bank v. Bush 72, 133 Union Bank v. Gregory 520 Union Bank v. Mott 136, 83] Union Mut. Ins. Co. v. Osgood 326 Union Rubber Co. v. Tomlinson 846 United States y. Archer 119, 441 United States v. Bartlett 382 XXX vm TABLE OF OASES CITED. PAGE. tJnited States v. Cushnian 119, 441 United States V. Hunter 271 United States v. Inhabitants, etc.. 383, 460 United States v. Lelfler 898 United States v. Wilder 663 University v. McNeil 489 Upjohn v.Up.i'ohn 564 Utioa Ins. Co. v. Lynch 540, ,545 Utica Ins. Co. v. Scott 804 Utter V. Stewart 342 Vail V. Knapp 498 Valentine v. Llovd 127, 373 Valentine v. Wetherill 88 Valton V. Nat., etc 337 Van Allen v. Jones 168, 169, 668 Van Alstyne v. Freday 311, 648, 733 Van Alstyne v. Nat. Com. Bank 368 Van Beck v. Village of Rondout 443 Van Benthuysen v. Stevens 155 Van Busitirk v. Irving 563 Van Buskirk v. Roberts 676 Van Buskirk v. Stow 405, 566 Van Camp v. Miller 213 Vanderbilt v. The Accessory Transit Co 799, 837, 839 Vanderkemp v. Shelton 468 Vanderpoel v. Tarbox 173 Vanderwerker v. Vanderwerker ... 89, 837 Vandevoort v. Gould 140, 233 Vandusen v. Hayward 463 Vandusen v. Young 417, 450, 466, 476 Van Epps v. Harrison 552 Van Epps v. Van Dusen 88 Van Etta v. Evenson 699 Van Etten v. Hurst 864 Van Grierson v. Van G-ierson 535 Van Horn v. Emerson 105 Van Home v. Montgomery 645 Van Home v. Willis 281, 282 Van Leuven v. Lyke 294, 448 Van Name v. Van Name 146, 326 Van Namee v. People 155 Van Ness V. Bush 831 Van Nest v. Talmage 255 Van Orman v. Phelps 444, 565 Van Peel V. Boyes 623 Van Rensselear v. Aiken 437 Van Rensselear v. Bonesteel 416 Van Rensselaer v. Brice 553, 584, 593 Van Rensselaer's Ex'rs v. Gallup 798 Van Rensselaer v. Kidd 4.53 Van Rensselaer v. Kirkpatrick 698 Van Rensselaer V. Morris 383 Van Rensselaer v. Owen 66, 70 Van Rensselaer v. Smith 416 Van Schaaick v. H. S. R. R 385 Van Schaaick v. Tliird Av. R. R. Co. . . 416 Van Slyck v. Snell 899 Van Steenburgh v. Tobias Ill Van Tassel v. Van Tassell'. 428 Van Valkenburgh v. Stupplebein. .. 588 Van Valkenburgh v. Van Schaack 245 Van Vlieden V. Wells 438 Van Wicklln v. Paulson 416 Van Winkle v. Adams' Ex. Co 306 Van Wyck v. Alli^er 475 Van Wyck V. Aspinwall 696 Vassear v. Livingston 623 Vaughn V. Hancock 674 Vaupell V. Woodward 702 Vedder v. Vedder 303 Vermeule v. Beck 140, 141 Vermilyeav. Odell 832 Vernede v. Weber 424 Vestry v. Ramsey 403 Viall V. Mott Ill Viany v. Ferran 430 Vibbard v. Rodrick 839, 831 Viele v. Goss 738 PAGE. Vincent v. Cornell 4.57 Vincent v. Leiand 435, 473 Vinton V.King a53, 692 Vitturn v. Oilman 103 Vivian v. Mersey Docks 679 Vogel V. Babcock 75, 317 Voorhies v. Voorhies .564 Voorhis v. Baxter et al 121 Voorhis V. Chllds 24 Vosburgh v. Moak 390 Vrooms V. Titmas .5.59 Wade V. Chaffee 664 Wadev. Coope 438,698 Wade V. Rusher 109, 140 Wadleigh v. Veazie 498 Wadley V. Davis 861 Wagener v. Bell 346 Wager v. Troy, etc 409, 443 Waggoner v. Brown 281 Wagoner v. Jermain 207, 365, 480 Wagstaff V. Bryan 289 Wake V. Harrass 293 Wakefield Bank v. Truesdell 673, 699 Wakeley v. Davidson 479 Wakeman V. Gowdy 390 Wakeman V. Grover 81 Wakeman v. Hazleton 299 Waite V. Leggett 378 Walburn v. Ingilby 109 Walcott y. Eanolds 168 Walden V. Crafts ;323 Waldham v. Bender 65f! Waldorph v. Bortle 98, 99 Waldron V. Ritchings 372 Waldron v. Williard 69, 70 Walker V. Cronin 877 Walker v. Deveraux 109 Walker v. Gilbert 364. 365, 668 Walker V. Granite Bank 268,529, 831 Walker V. Olding 453 Walker v. Osgood 69, 694 Walker v. Swayzee 695 Walker v. Walker 100, 325 Wallv. Lee 667 Wallace v. Baton 65, 78, 746 Wallace v. Fitzsimmons 146 Wallace v. Lent 338, 365 Wallace V. Moore 351 Wallace v. Eusen 609 Waller v. Raskan 364 Walls T. Bailey 860 Walmersley v. Child ,369 Walradt v. Maynard 323 Walrath v. Handy 313, 481 Walrath v. Thompson 343 Wallrod v. Ball 389 Walrod V.Bennett 534,570, 710 Walsh V. Durkin 498 Walsh V. Ostrander 620 Walsh V. Rutgers' Fire Ins. Co 235 Waller V. Bennett 467, 843 Walter v. Lockwood 336 Waltermere v. Westover 206, 7">4 Walton V. Walton 330 Walworth V. Holt 83,108 Warburton v. Great Western, etc 375 Ward V. Davis 794, 795 Ward v. Dewey 64, 310, 408, 473 Ward V. Gove 632, 673 Ward V. Kelsey 695 Ward V. People .' 454 Ward V. Stringham 155 Ward V. Syme 461,565 Ward V. Van Bokkelen 115, 116 Ward V. Waterhouse 520, 64S Warden V. Eden 366 W aring v. Smyth 474 Warner v. Blakeman 366 Warner v. Heiden 348, 869 TABLE OF CASES CITED. XXXIX Warner v. Kenny 793, 794 Warner v. Nelligar 230 Warner V. Western Trans. Co .305 Warren v. Eddy 100, 101 Warren v. Scott 693 Warren v. Warren 367, 67^ Warren v. Wendell 253 Warring v. vV' arring 4O0 Warth V. Hadde 110, U3 Warwick v. Mayor Ill Washburn v. Franklin 206, 349 Washburn v. Herrick 819 Washburn v. Hubbard 861 Waterbury v. Sinclair 337 Waterbury v. Westervelt 487 Waterman v. Jameson 684 Waters v. Whittemore 161 Waterville Manuf . Co. v. Bryan 336 Watkin v. Hall 577 Watkins v. Eames 437 Watkins v. Rush 565 Watling V. Oastler 37 Watson V. Bailey 559 Watson T. Hazard 139 Watson V. Huzzan 591, 735, 755, 761 Watson V. McClay 475 Watson V. McLaren 168 Watson V. Shuttle worth 699 Watson V. Thibou 288, 389, 585, 831 Watt V. Watt 268 Watts T. Kelson 478 Watts V. Kinney 126, 479 Watts V. Ward 890 Wayne v. Devinuey 437 Wayne, etc., v. Smith 437, 438 Wayland v. Aymer 546 Wayland v. Lysen 304, 648 Wayne V. Smith 438 Weatherly V. Wood 475, 476 Weaver v. Bardin 854, 883, 887 Weaverv. Ward 387 Weaver v. Wisner " 425 Webb V. Beavau 900 Webb v. Pond •. 303 Webb' v. Eome, etc 879 Webbv. Scott 900 Webber V. Underhill 69 Webster v. Dillon 333, 871 Webster V. French 710 Webster v. Nosser 363 Weed V. Bibbins 210, 428 Weed V. Clark 125 Weed V. Panama R. E. Co 375 Weels V. Webster 816 Wehle V. Butler 564 Wehle V. Howlaud 564 Wehl V, Vanderwulbeke 439 Weiger v. Held 497 Weil V. Schultz 395 Weitner V. President, etc 386 Welch V. Uurand 391 Welch V. Hazelton 695 Weld 7. Baxter 693 Weld V. Oliver 444 Weldon v. Harlem, etc 390 Welles V. Webster 236 Wells V. Cruger 389 Wells V. Jewett 143 Welling V. Judge 390 Welliston v. Welliston 431 Wells V. Jewett Ill Wells V. Kelsey 473 Wells T. Padgett 426 Wells V. Pierce 413 Welton y. Divine 664 Wendell v. City of Brooklyn 493 Wendell v. Mayor 387 Wendell v. Van Rensselaer 106 Wentworth v. Poor 479 Werner v. Waters 671 PAGE. Wescott v. Keeler 703 Wesson v. Judd .541, .5'13 West V. American Ex. Bank ,520, .533 West V. Brewster 161 W est V. Randall et al 79 West V. Stanley 288 Westcott V. Fargo H73, 884 Westcott V. Thompson 319 Western Bank v. Oddie 684 Western Ins. Co. v. Eagle, etc., Ins. Co., 275 Western v. McDermott 317, 3.52 Western Reserve Bank v. Potter. . 100, 412 Western Trans. Co. v. Marshall 306 Westfall V. Preston 899 Westfall V. Peacock 868 Westlake v. Degraw 365 Wetmore v. Atlantic, etc 477 Wetmore v. Soovill 407 Wetterwulgh V. Knickerbocker, etc. .. 484 Weyburn v. White 71 Whaley v. Peak 399 Wheeler v. Alien 310, 561 Wheeler v. Billings 508 Wheeler v. Brant 394, 295 Wheeler v. Dakin 103 Wheeler v. Dixon 601 Wheeler v. Garcia 323 Wheeler v. Gilsey .3.53 Wheeler v. Euckman 673, 673 Wheeler v. Wheeler 137 Whelan v. Whelan 80, 106 Wheelock v. Wheelright 303 Whincup V, Hughes 490 Whitakerv. Eighth Av. E. R. Co 831 Whitbeck v. Edgar 114 White V. Atkins 486 Whitev. Dodds ,564 White v. Carmarthen 109 Whitev. Carroll 696 White V. Cummings 600, 642, 643 White V. Cotesworth 564 White V. Crisp .387 Whitev. Dodds 309 White V. Graves 867 White V. Hudson River Ins. Co 765 White v. Jones 341 White V. Joy 717 Whitev. Kidd 240, 591 White V. Low 125 White V. Madison 123, 293, 330 White V. Merritt 337, 738 White V. Moseley 479 White V. Nellis 425 White V. Osborn 444 White V. Schuyler 430 White V. Seaver 54 Whitev. Smith 505,854 White v. Story 373 White V. Whitman 498 Whitev. Williams 376,414 White V. Winnissimmet 389 Whitehouse V. Moore 319 Whitfield V. South Eastern, etc 371 Whiting V. Mayor 770 Whitlock V. Lysaght 366 Whitmarsh v. Angle 332 Whitmarshv. Campbell 831 Whitmore v. Greene 565 Whitney v. Hitchcock 323, 398 Whitney v. McKinney 115 Whitney v. Taylor 470 Whitney v. Whitney 61, 343, 564 Whittier V. Bates 50 Whrede v. Bennett 576, 579 Whyte v. O'Brien 426 Wies V. Fanning 271, 581, 599, 602, 672 Wigand V. Sichel 141,191 Wiggett V. Fox 375 Wiggins V. Gans 640, 310 Wiggins V. McCleary 863 xl TABLE OF CASES CITED. PAGE. Wightv.Wood 310 Wilber v. Sisson 444 Wilbur V. Hubbard Ill Wilbur V. Osti-om 209 Wiloocks V. Nichols 18:^ Wilcox V.Lee tn2 Wilcox V. Smith 300, 328 Wilcox V. Wilcox 398, 444 Wild V. Columbia County Supervisors, 96;i Wilde V. Gibson 338 Wilde V. Hexter 839,841 Wilder v. Adams 564 Wiley V. Slater 29.5 Willies V. Harper 439, 668 Wilkie V. Chadwick 483 Wilkins v. Earle 8.54 Wilkinson v. Fowkes 108 Wilkinson v. Henderson 122 Wilkinson V. Martin 305 Wilkson V. Fairrie 386 Willett V. Stewart 159 Williams v. Allen 620 Williams V. Ayrault 498 Williamsv. Birch 833 Williams v. Brown 75 Williams V. Carwardine 418 Williams v. Edwards 486 Williamsv. Finch Yl, 398, 488 Williams V. Fowler 348 Williams v. Hancer 168 Williams v. Hayes 25, 45, 240,343, 245 Williams v. Hernon 388, 565 Williams v. Holdredge 429 Williamsv. Hutchinson 398,399, 489 Williams v. Keech 101 Williams v. Johnson 445, 446, 447 Williams v. Jones 303, 374 Williams V. Marshall 698 Williams v. New York Central R. R. Co 409, 443 Williams V. Richmond 803 Williams V. Tilt 332 Williams V. Upton 713,736 Williams v. Vanderbllt 320 Williamsv. WilkiJison 154, 830 Williamsv. Williams 353 Williamsv. Wood 337, 738 Williamson v. Allison 231 Wiliauison v. Champlin 232 Williamson v. Moore 98 Williard V. Eastham 371 Williard v. Merritt 425 Willings V. Wheeler 316, 363 Willis V. Chipp 560, 635, 656,659, 738 Willis V. Forest 796 Willis V. Taggart 550, 551, 584, 605, 606 638, 764 Willis V. Underhill 836 Willis V. Warren 333 WilHston V. Williston 432, 434 Wills V. Wills 399 Wilson V. Brereton 493 Wilson V. Edwards 897 Wilson V.Hart 317 Wilson V. McLaughlin 900 Wilson V. Mayor 443, 687, 766 Wilson V. Stolly 70 Wilson v.- Tummon 899 Wilson V. Wilson 100 Winchell v. Bowman 206, 681, 7.54 Winchellv. Hicks 206 Wingv.Dugan 863 Winne v. Sickles 546, .547, 647, 740 Winship V. Fitts 475 Winslow V. Ferguson 64s Winsor v. Lombard 422, 471 Winsted Bank v. Webb 191 Winterbottom v. Lord Derby 345 Wintringham v. Lefoy 453 Wiaev.Chase 193 PAGE. Wisenberg v. City of Appleton 323 Wiswall V. McGown 394 Witbeck V. Holland 331 Witbeck V. Witbeck Hi i Witham V. Witham 443 Witherhead v. Allen 97, 171 Witt V. Mayor, etc 415 Wodell V. Coggeshall 398 Wolcott V. Halcomb 463 Wolcott V. McFarland 830 Wolle V. Frost 317, 352 Wollev. Goulard 445 Wolfe V. Howes 490 Wolfe V. Supervisors 206 Wood V. Anthony 200, 609, 809 Wood V. Brown 373, .561 Wood V. Clate 140 Wood V. Derrickson 462, 463 Wood V. Henry 192, 253, 351 Wood V. .Tackson ., 455, 458, 564, 565 Wood V. Lambert 794 Wood V. Orser 453 Wood V. Perry 701 Wood V. Stanril 5.36, 537, 801 Wood V. Whitney .530 Wood V. Wood 787, 807, 849 Woodbury v. Sackrider 180 Wooden v. Strew 244. 249, 594 Wooden v. Waffle .... 23, 25, 36, 39, 43, 49 348, 590, 784 Woodger v. Great Western Trans. Co . . 306 Woodley v. Coventry 343 Woodruff V. Cook 338, 566, 798 Woodruff V. Dickie 839,830 Woodruff V. Moore 874 Woods V. Creaghie 411 Woods V. Morrell 530, 541, .593 Woodward v. Aborn 4S0 Woodward V. Stearns 676 Woodworth v. Bellows, 591, 610, 635, 799, 803 Woodworth V.Bennett 3.50 Woolen V. Wright 4.53 Woolery V. Woolery 664 Woolever v. Knapp 444 Wooley V. Clark 671 Woolsey v. Judd 314, 366, 407 Woolsey V. Trustees 839 Woosterv. Chamberlain 88, 663 Worcester, etc., v. Bigelow 437 Worth V. Edmonds 490 Worth V. Gilling 3S5 Worthington v. New York Central R. R. Co RT7 Wright V. Austin : 699 Wright V.Bell 4:« Wright V. Castle 300 Wright V. Delafleld 338, 561, 787 Wright V. Evans .353 Wright V. Holbrook 133 Wright V. Leonard 373 Wright V. Moore 465 Wright V. Morley 438 Wright V. Paige 438, 429 Wright V. Ritterman 497 Wright V. Saunders 348, 384 Wright V. Storms 625, 836 Wright V. Berks 697 Wright V. Whiting 303 Wright V. Wright 400 AVyatt V. Harrison 449 AVyckofl V. Meyers 486, 487 Wygant v. Sichel 496 Wygant V. Smith 331, 411 Wylde V. Harris 8.54 Wyman v. Fariisworth 466, 467 Wyman v. Fox 335 Xemia Branch Bank v. Lee 149 Yale v. Dederer 371 TABLE OF CASES CITED. xli PAGE. Tardly v. Ingram 668 Varroway V. Hand 88 Tates V. Fassett 69, 460 Yates V. Milwaukee 396 Yates V. St. John 864 Yellowby v. Grower 364 Yerby v. Kirkpatrlck 75 Yertore v. Wiswall 103 Yoratt V. Winyard 353 York Co. V. Brookes 896 Yorks V. Peck 131 Young V. Billiter 461 Young V. Callett 530 PAGE. Young V. Davis 311 Young V. Grote 334 Young V. Hunter 424 Young V. Kent 539 Young y. Pickens 694 Youngs V. Ransom 414 Youngs y. Stahlen 688 Zabriskie y. Smith 68, 70 Zeighler y. Beasley 698 Ziiin y. Ne w Jersey, etc 856 Zerkowski y. Zerkowski 143, 335 F [*9] * INTRODUCTION. In presenting for the favorable consideration of the profession a treatise on the system of pleading in civil actions as modified by the Code of Procedure, a brief explanation of the object and design of the work -vvill not be inappropriate. The idea of undertaking a task of the kind, presented itself to the author as the suggestion, first, of his own immediate wants in the daily practice of the profession ; and, second, as a suggestion arising from the wants of that large class who are engaged in a course of elementary study, preparatory to entering upon the prac- tice of law. From his own experience, the author was entirely satisfied of the utility and general convenience to the practicing lawyer of a treatise exclusi-vely confined to the subject of pleading, and presenting at one view the general features of pleading, under the former practice both at law and in equity, with the modifica- tions and changes effected by the Code, the principles governing the new system, the rules now applicable thereto, and a reference to, and analysis of, the decision made by the courts in illustra- [*10] tion and explanation of those * rules and principles. Such a work, if properly executed, the author was satisfied, from his own wants and experience, might be of much utility, as a book of reference to the profession generally. Still more so to the law student might such an elementary work be deemed of use and service as an introductory study to the science of pleading, and as a guide to indicate the extent and nature of the changes made in that science by the Code. There is scarcely a more perplexing subject to one entering upon the study of the law, than that which embraces the system and science of pleading as it now exists, nor one which requires more accurate and careful study to master. Under the old system, as it heretofore prevailed in this State, mingling as it did much of a useless form and frivolous tech- nicality, with much of that substantial logic and sound reason which must always characterize any system so long as legal distinc- tions are preserved, the study, though diflBcult, was accurate and systematic, and the land-marks of the science clearly and distinctly defined. The authorities had been so carefully collated, and so thoroughly digested, both in the digests themselves and in element- ary works on pleading, that if patience and industry only held out, one was certain in time to grasp the entire subject. There could be no mistake in the way of acquiring this knowledge. The [*11] ablest writers on law had *treated of, and, perhaps, exhaust- ed the subject. The student could consult among others, on pleading at law, such writers as Chitty, Gould and Stephen. In Equity, Lube, Cooper, Mitford and Story. Nor were precedents, 3 INTJRODUCTIOSr. in every conceivable variety and form, wanted to illustrate the sub- ject, and assist him not only in its acquisition, but in its practical application. All this is now changed. At the very outset one is embarrassed in selecting the proper course to pursue, or the immediate study to enter upon, in acquiring a practical knowledge of the science of pleading under the Code. The very first provision that meets us at the threshold is, the provision of the Code; "all the forms of pleading heretofore existing are abolished ; and hereafter the forms of pleading and the rules hy which the sufficiency of the pleadings is to be determined shall be those which are prescribed in this act." Code, § 140. Under this provision, it would seem as idle to place in the hands of the student, a volume of Chitty, or Stephen, of Cooper, or Story, with a view of his obtaining from them alone a knowledge of pleading at law and in equity, as it would be to place in his hands an elementary treatise on Uses and Trusts, with a view of his be- coming master of that branch of the law as now codified by the Eevised Statutes. [*12] * Nor does the Code itself furnish the desideratum. It abolishes but it does not reconstruct ; it tears down an old ■ system, but it does not build up a new and complete one in its place. It lays the foundation, it is true, simple, broad and strong, but it leaves the edifice to be erected; it sketches, boldly and dis- tinctly, the outlines, but does not fill out and complete the picture. It is not true then, as one on a cursory glance might be led to suppose, that the main rules of pleading, founded as they are in sound logic and solid reason, are utterly abolished, though the forms may be; nor that the study of the elementary writers above mentioned, and of others who have treated upon this subject, and the authorities which establish, and the decisions which illustrate the principles of pleading under the old system, are to be whoUy discarded in acquiring a thorough knowledge of the new. It is undoubtedly true, that every thing technical and formal has been swept away, and that many important changes in other respects have been made by the Code ; but much of what was sub- stantial and solid still remains; and it is also true, that a knowl- edge of the fundamental principles on which the former systems, both at law and in equity, were based, is still essential to a thorough and practical knowledge of the subject. The main diflficulty [*13] to * the lawyer in his practice is in the adaptation of these principles to the new system. The main diflficulty to the student is in determining for himself the proper course of study and investigation — the starting point of inquiry — arising from his ignorance or doubts of the nature and extent of the changes introduced by the Code, and how much of the old and well-estab- lished theory is still applicable to the new practice. It is the object and design of the present work, in some humble degree, to supply, partially at least, this want of the profession. The following pages, it is hoped, will prove of service and utility INTEODUCTIOK. 6 not only to the student, as an elementary book, in furnishing to him facilities for, and assisting him in, the right prosecution of his studies in this branch of the law, but to members of the profession geiierally, as a book of easy reference to establish precedents and recognized principles of pleading, both under the former practice and under the Code. The importance of the subject is such, certainly, as to justify its consideration in the form proposed. The Commissioners of the Code say, they consider the change in pleading to be the key-note of the reforms recommended by them, without which they would despair of effecting any very useful or practical reforms. We may regard this, therefore, as the most important, as it is the [*14] most radical and * extensive of the changes made; audit has, for this reason, been deemed proper to treat it as an entire subject, separate in itself, and distinct from the subject of practice under the Code. Nor is it pretended that in the following pages the subject has been exhausted, or the entire ground fully explored. To do this would lead us far beyond the limits marked out. A full and com23rehensive view of the whole subject would require the discussion of principles drawn from almost every branch of the law. In order to frame a pleading correctly under the new system, not only the rules of pleading, properly speaking, but the legal principles involved in the action, and upon which the relief depends, must be thoroughly understood. The forms and prece- dents, to which, like the bed of Procrustes, under the old system, every cause of action was made readily to conform, are now aban- doned. The pleader must state his facts'; and the facts must be such, and such only, as constitute a single good cause of action. The question that meets him on the threshold is, what facts consti- tute a good cause of action ? and without the aid of any form or precedent to guide him, this question must be satisfactorily answered before he can safely take the first step in pleading. It is evident, therefore, that the science of pleading comprises something more than a mere system of rules respecting the mode and manner of making allegation in a cause. [*lo] * Most members of the profession will no doubt agree that it requires a better lawyer to frame the pleadings correctly under the Code, than under the old system. Take one of the most simple and familiar cases — that of an action of trover at common law. Almost every variety of case in trover might be properly adapted to the old form, namely, — that the plain- tiff A, was possessed, as of his own property, of a certain chattel which he casually lost, and which afterward came into B's hands by finding. But, the said B, although often requested, has not returned the same, but has converted it to his own use, etc. No request was, perhaps, ever made, and no loss or finding was neces- sary to be proved, and yet the pleading was theoretically good ; and the plaintiff was allowed to show any state of facts to prove that the defendant had converted, or sold, or destroyed, or was exercis- ing unlawful dominion over the property. Under the new practice, 4 INTEOD0CTION. the facts alone must be stated. A demand is not necessary to be averred, except when necessary also to be proved, or rather when the facts in the complaint show that such demand must be proved to sustain the action. In what cases, therefore, it may be asked, is a demand necessary to be alleged in an action which would have been formerly trover, or in an action to recover personal property ? This question, often a nice and difficult question of law, it [*16] will be seen, must be first * satisfactorily solved before the pleading can be correctly drawn ; for no general form of pleading can meet every variety of case, particularly where it may be desirable to verify it by the oath of the party. A full consideration, therefore, of the subject of the science of pleading might be said to embrace the discussion of the principles of law on which the action is grounded, and which determine the kind and measure of relief. The present Treatise, of course, attempts no such wide range, and to accomplish no such ambitious design. It professes merely to consider and discuss the new principles of pleading (as distinct from practice) adopted by the Code, and to refer to, and comment upon, the adjudicated decisions thereon ; and also to compare these principles and decisions with the established principles and adjudi- cated cases before the Code. It professes also to consider and note the changes effected by the Code, and to discuss and point out the rules which now exist, to test the sufficiency of the pleadings ; to apply these rules in detail to the various pleadings on the part of either party — the complaint, the answer, the reply, the demurrer — and to compare the nature, object, and use, as well as the mode and manner of allegation, of each of these pleadings, with its corre- sponding pleading under the former law or equity system ; [*17] and finally to consider the effect of the pleadings, * and the rules for the construction thereof under the Code, together with some questions of a practical nature connected therewith. This will be found, in the main, to comprise the entire scope of the work. It is, of course, from the nature of the subject, and the changes made by the Code, essentially different from any former treatise on pleading ; and, from its generality, embracing as it does the subject of pleading, both at law and in equity, must be, in many other respects, far from complete. It is believed, however, to present a full and correct view of the main features of the new system ; together with such of the former general rules of pleading, as are applicable to that system, and as do not conflict with the provisions of the Code and the adjudicated cases thereon. The propi'iety of accompanying the volume with a collection of approved precedents of pleading, adapted to the text, and drawn in conformity with the principles there laid down, has been suggested, and at first commended itself to the judgment of the author; but on reflection the design was abandoned. Pleading, as we have seen, is a matter of substance and not of form, under the Code. It does not rest upon technical rules and formulas, but upon those broader INTRODUCTION". 5 legal principles which determine the right of action, the measure and kind of relief, and the nature of the evidence which [*18] sustains it. Every * right of action, involving, as it does, different legal principles, and being based upon different facts and circumstances, may require a different form of statement; and no collection of precedents, however extensive it might be, would be sufficient to furnish a form for every kind of remedy sought in our courts. Under the Code, precedents are, in general, to be invented, and cannot in all cases be prepared beforehand for use. The pleader is required to understand the legal principles on which his action is based, the evidence necessary to support it, the general rules of pleading, and make his forms for himself. It is not, however, meant by this, that a collection of approved prece- dents of pleading, under the Code, might not be of considerable utility, not only in practice, but also in illustration of the princi- ples discussed in the text. On the contrary, the author has no doubt such a collection, if carefully and correctly made, would be useful and serviceable, and might moreover tend to establish a uniformity in the language of an ordinary pleading, which would certainly be desirable to counsel, and tend to facilitate business in court. Should the wants of the profession require, and the approval of the present work justify such a collection of precedents and forms of pleading, it can be readily supplied hereafter. [*19] * CHAPTER 1. OF PLEADING IN GENERAL. The term Pleading, at common law, signified the allegations of parties to suits when they are put in a proper legal form. It was in strictness no more than setting forth that fact, which, in law, showed the justice of the demand made by the plaintiff, or the discharge and defense made by the defendant.' In equity, also, pleading signified nothing more than the written allegations of the respective parties, containing the facts of the case (in a due legal form) on which the one party founded his title to relief, or the equitable aid of the court, and the other his discharge and defense.' In the present chapter, treating of the general nature of pleading under the former, as well as under our present system, the subject will be considered in the following order : 1. Origin and history of Pleading. 2. Pleading as it existed before the Code. 3. General changes effected by the Code. 4. Of the rules to determine the sufficiency of Pleading under the Code. [*30] * SECTION I. OKIGIN AND HISTORY OF PLEADING. The system known by the name of pleading is of remote antiq- uity. Mr. Stephen, in a note to his Treatise on Pleading,^ traces the origin and meaning of the word jplca. He thinks it of JSTor- man origin, derived, perhaps, from the 'Roma.n plaoitum, the name applied to the rescripts of the emperors, and the judicial decisions of the Roman empire. It was anciently used to signify suit or action ; but within the meaning of the later English law is taken in its more restricted sense of mahinij allegations in a cause. The pleadings in equity, it is said, were probably borrowed from the civil law, or from the common law (which is a derivative from the civil law), or from both. Hence, at almost every step, there may be traced coincidences between the pleadings and prac- ' Bacon's Abr., Title Pleading. 'Note 1, Appendix, « Story's Eq. PI., §4. 8 ON PLEADING IN GENERAL. [CH. I. tice in chancery, and the pleadings and practice in a Koman suit and in an ecclesiastical suit.' These two modes of pleading, however, from the earliest period were kept separate and distinct, and still are to this day in Eng- land, and most of the States in the Union, where the common law and equity are administered, if not in different tribunals, yet under different forms of proceeding. The Code [*21] * of Procedure of New York attempts to unile and blend them together. Anciently the appearance of the parties in court, in actions at law, was an actual appearance, and the pleading was an oral altercation in open court, in presence of the judges. This mode was in use in the reign of Henry III, and written pleadings, it is supposed, were not introduced till about the middle of the reign of Edward III.'' It was the office of the judge to superintend this oral conten- tion, and to compel the pleaders so to manage their alternate allegations as at length to arrive at some specific point w matter affirmed on the one side and denied on the other. The result being attained, the parties are said to be at Issue. If the issue proved to be one of law, it fell to the judge to decide ; if of fact, the parties referred it to one of the various modes of trial then practiced, or to such tiial as the court should think proper.' The change of oral pleading in open court for that of written statements led to no departure from the ancient style of allega^ tion. The pleadings ever since continued to be framed upon the same principles and to pursue the same forms as when they were oral. Pleading is said to have been first methodically formed, and cultivated into a science, in the reign of Edward I. From that time the judges began to prescribe and enforce certain rules of statement, of which some had been established at periods con- siderably more remote, and others, apparently, were then, [*22] from time to time, first introduced." A * modern writer thinks the science was in a state of progressive advance > Story's Eq. PL, § 14, and see note to ^ 3 Reeves, 95. this section, tracing an outline of the ' Steph. PI. 24. proceedings in suits under the civil ■* Steph. on PI. 133. and canon law. SEC. I.] OKIGIN AND HISTORY OF PLEADINa. 9 till the reigns of Henry VI and Edward lY, when it was " culti- vated with so much industry and skill that it was raised to a sudden perfection in the course of a few years." ' But Lord Coke and Sir M. Hale refer to the reign of Edward III as thd period when pleading had attained its highest point of excellence. The latter complains that the judges and pleaders had become " somewhat too curious, and that the science had degenerated from its primitive simplicity." The " trivial niceties " and prolix- ity, of which he complains, are abuses that continued to exist till long after his day, and though, in modern times, much checked and discouraged, were never entirely extirpated.^ Pleadings being thus modified, from time to time, by the appli- cation of a variety of arbitrary and technical rules, were gradually moulded and refined, through the course of centuries, into that system of special pleading peculiar to the English common law, from which our own system was derived. It was a feature of this system that every cause of action had its appropriate form of remedy, and each form its rules peculiar to itself. The origin of these different forms of action is a curi- ous portion of the history of English jurisprudence, and it may not be uninteresting or unprofitable here, briefly, to notice this branch of the subject, as it will serve, in some degree, to account for and explain the difference which existed, from the earliest periods, between the pleadings and practice at law and in equity. [*23] *It has been well observed that, in strictness, there were not and could not be distinct systems of law and of equity. They were, more properly, distinct systems of pleading and practice.' Both originally issued from the same source and were based upon the same laws. Thus, actions at law, in the earliest ages of English jurisprudence, and before the system which we now call equity was established, were commenced by the issuing of what were afterward known as original writs, technically termed hrevia* These writs were issued on the peti- tion and application of the suitors out of chancery. The chan- ' 3 Reeves, 424. * Their use may be traced as far ° Appendix to Steph. PI., Note 35. back as tlie time of Henry 11, and they ^ See Const. Debates, 1846, pp. 441, are generally supposed to have been 443, 443, Argus ed. of Norman origin. 2 10 ON PLEADING IN GENERAL. [CH. I. cellor, deriving Ms power from the crown, as the head and fountain of jiistiee, administered legal redress in all cases. On the appli- cation of a suitor, the chancellor, instead of administering the relief himself, issued an original writ, under the great seal, in the king's name, directed to the sheriff of the county where the injury was alleged to have been committed, containing a summary statement of the cause of complaint, and requiring the party to do jxistice, or to appear before some of the king's judges or courts, to whom the writ was directed, and who were authorized by it to determine the controversy between the parties. Thus, the writ was, in substance, a commission from chancery to an inferior tribunal, to hear and determine the claim, instead of its being heard in the first instance by the chancellor himself. It was regarded as essential to the due institution of the suit, [*24] and as giving jurisdiction to the court in * which the defendant was directed to appear. These writs were con- ceived in fixed and certain forms, and differed from each other according to the nature of the injury they were designed to redress. In the course of time they came to have the effect of limiting and defining the right of action itself, so that no cases were con- sidered within the scope of judicial remedy but those to which the language of some known writ was found to apply.' It was soon found, however, that cases of injury arose for the redress of which no known precedent or form of action could be found. Accordingly, a statute was passed in the reign of Edward I, authorizing the clerks of chancery to issue new writs as occasion might require. Under this statute many writs were issued, which, being analogous to writs of trespass, were denominated trespass on the case. It was supposed, at one time, there were fifty-nine of these different original writs, or forms of actions, in use. They were, however, much reduced in number, from time to time. At the adoption of the Code, in this State, there were but ten forms of personal actions. Ifo new writ had been invented for the last three hundred years.^ It was, however, found difiicalt or impossible to invent different forms of action, sufiicient to afford the appropriate remedy for ' Steph. on PI. 8 ; 1 Burr. Pr. 10. ' See Report, Com. Code, 139. SEC. I.J ORIGIN AND HISTORY OF PLEADING. 11 every case which might arise. Though remedies and forms of action had been provided to enable suitors to recover money demands, or specific chattels, or lands, yet there were none [*25] to * enable them to restrain a party from the commission of a wrong, to enforce the specific execution of a contract, or obtain other specific relief. The exigencies of society soon rendered this necessary, and the remedy was accordingly provided. When the suitor came with his petition to the court of chancery for specific, or, as it is now called, equitable relief, and found no appropriate writ or form of action whereby to obtain it, the chan- cellor, instead of devising a new writ and sending him with it to the courts of law, to obtain redress under that form, heard the petition and administered the relief in person. This was the origin of equity jurisprudence. It is to be particularly observed that no argument can be drawn from the origin of the two systems in favor of an inherent difference between legal and equitable relief. There is no reason why, in the earlier ages of English jurisprudence, a writ should not have been furnished to a suitor, providing him with a form of action at law to restrain the com- mission of an injury, or to enforce a special contract, as well as to recover chattels or real estate. In such ease these actions, now classed as equitable, would have been legal, and governed and con- trolled by legal forms as much as the action of replevin or eject- ment. The different forms of pleading adapted to the two classes of cases grew out of this practice of administering relief in two dis- tinct tribunals. The pleadings at common law, as we have seen, were moulded into a system in the courts of law, and were, as has been well expressed, " the necessary growth and consequence of the gradual refinement of English jurisprudence through [*26] a succession of centuries." The * allegations of the par- ties, as we have also seen, different from the practice of the civil law, were originally oral ; and the judges applied their own rules and invented their own forms of pleading to attain the specific object in view, namely, the production of an issue. In chancery, however, the forms of the civil law obtained. The early chancellors, being either ecclesiastics or statesmen, were many of them bred up in the jurisprudence of the civil and canon 12 OJSr PLEADING IN GENERAL. [CH. I. law, and it was natural for them, in the administration of their judicial functions in the court of chancery, to transfer into that court the modes of proceeding with which they were most fam- iliar.' Finding the modes of proceeding at law limited and re- strained by a system of rules so arbitrary and inflexible as to render those modes inadequate to afford relief in a large class of cases, in which, by the common law of England, relief ought properly to be granted, they disregarded those modes and forms, and threw off entirely the restraints which confined and limited the proceed- ings in actions at law. They adopted no particular form of action ; they departed entirely from the system of special plead- ing. The suitor simply presented his petition or complaint, answering to the libel of the civil law, briefly stating, in writing, the facts of the case, the claims he sought to enforce, or the injury of which he complained, and asked the relief he desired. And the court, if he proved his case and showed himself entitled to that relief, administered it to him at once. The plead- [*27] ings * in this early period of equity jurisprudence were of great simplicity and brevity. The cases in which resort was had to equity were, as yet, few, and the facts of no great oomplexity or difficulty of detail." Nor was there any thing either in the nature of the controversy, or the relief prayed for, which rendered a different mode of prac- tice and pleading necessary in law and in equity. It was merely I Story's Eq. PI. , § 14. 2 story's Eq. PI., § 11. ' The old chancery bill contained very little more than the statins part, that Is to say, a statement of the facts which entitled the plaintiff to the relief he demanded. In Partridge, v. Haycroft, 11 Vesey, 574, Lord Bldon says, he had seen such a bill, with a simple prayer, that the defendant may answer all the matters aforesaid, and then the prayer for relief. He also remarks that Lord Kenyon never would put in the charging part of a bill, which does little more than unfold and enlarge the statement. Mr. Mit- ford in his treatise on Equity Pleadings has preserved the form of an ancient bill, copied from the record commission, and filed in the reign of Henry V. The following is a copy of this curious document ; "To the Reverend father in God, the Bishop of Winchester, Chancellor of England. Beseecheth humbly, your poor orator, John Bell of Calls, soldier, and Katherine his wife, that whereas William Atte Wood, otherwise called William Atte Doune of Koohester, father to the said Katherine, since died, heretofore was seized in his de- mesnes as of fee of one messuage with the appurtenances in Rochester, situate in the churchyard there, the which William, in the feast of St. Michael, in the twenty-second year of the reign of King Richard the Second, since the conquest, let to farm to one Simon Stelhard of Gillingham, the same messuage with the appurtenances for term of seven years then next ensuing, for a certain sum, to him annually to be paid; the which Simon within the first two years was ousted by the Executors of the said Wil- SEC. I.J OBTGIN AND HISTOEY OF PLEADING. 13 the result of circumstances. Thus, for example, if instead of issuing the original writ in the iirst instance in an action of as- sumpsit or debt, the chancellor had heard the case and adminis- tered the relief himself, according to the forms and modes of procedure of the civil law, there never would have grown up in England two such systems as those of law and equity. [*28] * An action to recover damages on a bond or a promissory note might have been sustained, as well in the form of a suit in equity, as in a suit at law. The plaintiif 's allegation, or statement of demand, might as well have been made in the form of a bill of complaint, as in that of a declaration. But this was prevented by the inflexible rule, that, if the party could obtain, relief in any known form of action in the courts of law, he could not claim it directly from the chancellor in equity. Similar con- sequences would have resulted, had the chancellor declined to determine any controversy between suitors, and sent them indis- criminately, by the invention of new writs and new forms of action, to the courts. An uniform system of pleading and pro- ceeding would doubtless then have characterized a,ll [*29] judicial * proceedings, and we should have found existing in our day the very thing at which the code aims, and which is said to be so difficult, if not impossible, to obtain under the com- mon and statute law of the land, namely, the abolition of the distinction between legal and equitable relief, as well as between legal and equitable remedies. liam because he would not attorn to them in the payment of the rent of the same messuage, the which messuage since then was several times alienated to divers per- sons, and now, so it is, very gracious lord, that one Piers Savage, now occupier of the same messuage, for the which messuage he hath not paid more than one mark, hath oftentimes been required to deliver to the same John and Katherine, this same mes- suage as the heritage of the same Katherine, and he hath not delivered it to them, nor yet will, but detains it, in destruction of their poor estate, and perpetual disherison of the same Katherine, if they should not obtain remedy by your gracious aid in this behalf, and the which John and Katherine are so poor, and the said John so ill, that they cannot pursue the common law. Please your very gracious lordship to consider the premises, and therefrom to grant a writ directed to the said Piers, to appear before you at a certain day, upon a certain pain by you to be limited, for to answer of the matter aforesaid, and to do right as good conscience demandeth it, and this for love of God, and in work of charity." It will be observed that the remedy sought here is similar to that obtained in an action of ejectment. The excuse of the parties for coming to the chancellor is that they "are so poor, and the said John so ill, that they cannot pursue the common law." It would seem from this, that in those primitive times, an existing common law remedy did not absolutely preclude the party from applying for relief in equity. 14 ON PLEADING IN GENEKAL. [CH. I. Siich is the origin of the diiference hetween the pleadings and proceedings in chancery and tliose in actions at law. This dif- ference became still more striking as the two systems grew up gradually side by side together. We have already noticed what the pleadings at law became. In chancery, as the court attained more extensive jurisdiction and exercised more diversified powers, new modes of pleading were from time to time adopted, fitted for its own peculiar purposes, and the/pleading and practice in chan- cery soon grew inl^o a distinct and independent system. What the pleadings in equity finally became, and what they were in this State and in other States of the Union,' under the old system which we inherited from England, is well expressed by Jiidge Story in his Commentary on Equity Pleading. It has become, he says, "A science of great complexity and a very refined species of logic, which it requires great talents to master in all its various distinctions and subtle contrivances, and to apply it with sound discretion and judgment to all the diver- sities of professional practice. The ability to understand [*30] what is the appropriate remedy and relief for * the case ; to shape the bill fully, accurately and neatly, withoiit deforming it by loose and immaterial allegations, or loading it with superiluous details, and to decide who are the proper and necessary parties to the suit. The ability to do all this requires various talents, long experience, vast learning, and a clearness and acuteness of perception which belong only to very gifted minds." SECTION II. OF PLEADING AS IT EXISTED BBPOBB THE CODE. The origin of pleading, at law as well as in equity, was noticed in the last section. In the present section it is proposed, briefly, to consider the distinguishing features, and the difi'erent modes of allegation which characterized the two systems. It has been observed that, in equity, there were no particular forms of action in use. The complainant stated his case and ' Except Louisiana, wliere the Chancery or civil law forms are used in all cases. SEC. II. J OBIGriSr AND HISTOET OF PLEADING. 15 prayed for his relief, and, if the case was proper for the relief demanded, and it appeared that the common-law courts had no jurisdiction, the relief was granted. In suits at law there were different kinds of civil actions. Actions were generally divided into three classes, real, [*31] personal and Tnixed.^ Personal actions * were divided into actions ex contractu and actions ex delicto. Actions ex contractu were principally assumpsit, covenant, debt and det- inue ; those ex delicto, case, trover, replevin and trespass!' The action of detinue was abolished in this State by statute,^ and its place supplied by replevin. Two other forms of action ex contractu might also be added to the above, namely, account and annuity. The former, though given by statute in certain cases,' was not often used, and the latter had become entirely obsolete. It was essential that some one of these forms of action should be selected by the plaintifl', who sought a legal redress for an injury to his personal rights, and it was, at common law, essen- tial, too, that he should select the proper form of action, otherwise he must fail. In equity the suitor was relieved of this embarrass- ment, but he sometimes encountered another nearly as great, namely, in determining whether the relief he asked was not such as might be obtained in some one of these forms of action at law. If he had an adequate remedy at law, he was turned out of a court of equity. General Course of Pleading in an Action at Law. Having determined, in a court of law, the form of the action to be prosecuted, the next step, on the appearance of the parties iu court, was their various statements or allegations, termed the pleadings. These were : 1. The Declaration ; 2. The Plea ; 3. The [*32] Eeplication; 4. The Rejoinder; 5. The Surrejoinder; *6. The Rebutter ; and 1. The Surrebutter. There was also the Demurrer, which was a pleading in the nature of an objee- ' Chit. PL 97. ■* 1 R. S. 750, § 9 ; 1 Edm. St. 701 , 2 = Chit. PI. 97. R. S. 113, %2;% Edm. St. 117 3 Hill, s 3 R. S. 553, S 15 ; 3 Edm. 8t 573 ■ 59 ■ r3 Barb 419], •"Grah Pr 2d ed, 85] 16 ON PLEADING IN GENERAL. [CH. I. tion to the other pleadings, as a matter of law, and might be pleaded by either party and at any stage of the proceedings. The first pleading on the part of the plaintiff was the decla/rw- Uon, which was a statement, in writing, of his cause of action, in legal form. This declaration, as every other pleading in the cause, was required to be framed agreeably to the established rules and forms of pleading (which we do not intend now to notice), and, if defective in any particular, either in substance or form, might be objected to, as insufficient in law, by demurrer, on the part of the defendant. Or, if the defendant did not demur, he might deny the declaration to be true in point of fact ; or, if it could not be so denied, he might allege some new matter in abatement, or suspen- sion of the action, or in contradiction to the plaintiff's declaration, or in avoidance of it. Such answer, in fact, on the part of the defendant, was technically denominated his^foa. To the defense thus made the plaintiff might again, in his turn, reply, either, in case of a demurrer, by re-asserting his declaration to be sufficient in law to support his action, and referring that question to the judgment of the court, which was termed a joinder in demur- rer ■ or, in case of a special plea, he might, on his part, demur to such plea as insufficient in law to constitute a defense, or he might deny it to be true in point of fact, or allege some new matter in contradiction to it, or in evasion of it, according to circumstances, such answer, in fact, being styled a re-plication . To the [*33] replication the defendant * might either demur upon the law, or oppose a joinder as to the fact ; and to the rejoin- der the plaintiff might demur, or oppose a surrejoinder ; and so the parties might continue to proceed, by a system of alternate alle- gation and objection, denial or evasion, technically termed the pleadings, until they arrived at an issue,' that is, some specific point of law or fact, affirmed on one side and denied on the other, and presenting the exact question for the court to determine." In Equity. The course of pleading in a suit in equity was entirely different. The complainant exhibited to the court his bill of complaint. This answered to the declaration in a suit at common law, or to ' See poat, chap, viii, § 1. taken from Mr. Burrill's Treatise on ' The above general description of Practice, vol. 1, pp. 80, 81. the course of pleading in an action is SEC. II.] OEIGIN AND HISTORY OF PLEADING. 17 the libel of the civil and canon law. It is true, bills were of various kinds, as bills of Interpleader; bills of Certiorari; bills praying the decree or order of the court touching some right claimed by the party 'exhibiting the bill, or some wrong done in violation of the plaintiff's rights. Also, bills to perpetuate the testimony of witnesses, and bills of discovery, — all of -which were termed original Mils.' Also, a variety of bills not orig- inal, as a bill of Revivor ; a bill of Eeview ; a bill to impeach a decree on the ground of fraud, etc. But though they were of various kinds, there was only one form, of bill. It was addressed to the court, contained the names and description of the [*34:] persons * exhibiting it, a narrative of the facts and cir- cumstances of the plaintiff's case, and of the wrong or grievance of which he complained, and the names of the persons by whom done, and against whom redress was sought, usually called the stating part, with a prayer for the particular relief demanded, and for process to compel the defendants to appear and answer. The bill, also, usually contained various other parts, such as the charging part / the interrogating part ; the jurisdiction clause, etc., which will be noticed hereafter." If any ground of defense was apparent on the face of the bill itself, either from the matter contained in it, or from defect in its frame, or in the case made b}' it, the defendant might, as in an action at law, take advantage of the defect by demurrer. If the objection was not apparent on the face of the bill, then it must be particularly pointed out to the court, either by plea or answer. A plea was proper when the matter was such as would reduce the case to a single point ; as, where the objection was to the jurisdiction of the court, or, for the want of proper parties. ° If, however, the defendant did not demur or plead to the com- plaint, he then put in his answer, by which he either confessed and avoided, or traversed and denied the several parts of the bill, or, admitting the case made by it, submitted to the judgment of the court upon the bill, or upon a new case made upon tho answer, or both.'' [An answer, unlike a plea, was not required to 'Story's Eq. PI., § 10, pp. 18, 19. ^ Id. 130. A demurrer was not prop- ' See post, marg. pp. 37, 38. er to an answer in Equity. 8 1 Barb. Cli. Pr. 114, 115 ; [1 Daniell's Ch. Pr., 4tli ed., 603]. 18 ON PLEADING IN GKNEEAL. [CH I. reduce the ease to a single point, but might interpose any number of defenses not inconsistent with each other,' and, in some cases, was required to answer in support of a plea.°] [*35] * The last pleading was the replication of the com- plainant to the defendant's plea or answer. It was noth- ing more than a general averment of the truth and sufficiency of the bill, a]id a denial of the allegations in the answer. Its office was merely the production of an issue." The cause was then in readiness for the taking of proofs, which were usually taken out of court, and the cause subsequently brought to a hearing upon the pleadings and proofs thus taken. Such were the general features of the two systems of pleading at law and in equity. The Code, which has swept them both away, has adopted, in place of them, a system substantially similar to the mode of procedure heretofore practiced in Equity and derived from the Civil Law. The change effected by the Code of procedure, in pleadings, constitutes, however, another and a dis- tinct branch of the subject, and will be discussed in the next section. SECTION III. GBrrERAL CHANGEB EFFECTED BT THE CODE. The first and perhaps the most radical and sweeping change eifected by the Code, upon the pleadings in civil actions, [*36] is in abolishing the distinction which * existed between actions at law, and suits in equity. Prior to the passage of the Code, as has been noticed in the preceding section, the pleadings, as well as the forms of proceeding, in a suit at law, were entirely dissimilar from those in a suit at equity. Each court had its distinct and separate system of procedure as each had its distinct jurisdiction. In the mode of pleading, especially, in these courts there was a wide distinction. The very object of the pleadings seemed to be different, and the rules which determined their sufficiency totally '1 Daniell's Ch. Pr., 4tli ed., 713; " gtory.g gq. PI., § 681, et seq. ; 1 Story's Eq. PI., g 851 ; 1 Barb. Ch. Pr. Barb. Cli. Pr. 116, et seq. 130. ' 1 Barb. Ch. Pr. 349. SEC. III.] GEXEEAL CHANGES EFFECTED BY CODE. 19 imlike. In an action at law, the object of the pleader wa^ by a formal statement of facts, or of those legal fictions which the formality of the common law permitted, and even required, to frame a single, material., and certain issue, either of law or of fact ; that is. some specific point or matter, afiirmed on one side, and denied on the other.' Hence the rule, that facts themselves must be stated, and not the evidence of facts, and the further rule which prohibited the parties in their pleadings from stating more than one matter constituting a suflicient ground of action in respect to the same demand or a sufficient defense to the same claim. The same count in the declaration could not contain two promises in respect to the same subject-matter, nor could the defendant, in the same plea, rely upon or set up several distinct defenses.^ The object of pleading in equity, and the rules applicable thereto, were entirely dissimilar. One of the main prov- [*37] inces of a court of equity was to enforce *from the defendant a discovery of evidence in aid of the relief sought. Hence, in equity, the plaintiff" was permitted to state his whole case, as well the facts, as any circumstances tending to prove and establish the facts, with a miuuteness of detail, and an informality, entu-ely incompatible -ndth the precision required by the rules of pleading at law. And moreover, the pleading was so frarued as to be used directly for the purposes of an examina- tion of the other party, not only upon the facts alleged in the bill upon which the complainant's title to relief rested, but upon collateral facts and matters of evidence merely tending to estab- lish these facts. Thus in addition to the statinej part of the bill, which Wis a narrative of the incidents producing the grievance or wrong complained of, and generally of all the facts of the case upon the proof, or admission, of which his title to relief depended, the complainant, in the usual form of an original chancery bill, was permitted to set forth and allege various other matters and collateral circumstances by way of charge, in order to compel the defendant bv his specific answer to acknowledge the grievance alleged, or which might anticipate and controvert his defense; this was called the charging fart of the bill. So, too, as a principal ' Steph. on Plead. 34. " 1 CMt. Plead. 236. 20 ON PLEADING IN GENEEAL. [CH. I. end of an answer by the defendants under oatii, they being required to admit or deny every allegation in the bill, was to supply proof of the matters necessary to support the plaintiff's case, and as experience proved that the substance of the matters charged in the bill might frequently be evaded by answering according to the letter only, it became a practice to add [*38] to the general * requisition that the defendants should answer the contents of the bill, a repetition by way of interrogatory of the matters most essential to be answered, adding to the inquiry after each fact, an inqniry of the several circumstances attendant upon it, and the variations to which it might be subject, with a view to prevent evasion, and compel a full answer. This was commonly called the mterrogating part of the bill/ Its object was to preclude evasiveness in the answer. The whole attention of the draftsmen, says Mr. Lube in his accurate and scientific analysis of equity pleadings, was turned " to this single point, of putting the question in every variety of form, to elicit a full and definite reply, and to prevent the defend- ant's having any loop-hole to escape upon a negative pregnant. In fact this part of the bill is altogether subservient to the office which the bill performs, of an examination, and should, therefore, omit nothing essential to the proof and elucidation of the state- ment."^ In addition to these matters the ordinary original equity bill contained the general charge of confederacy, ih.e jurisdiction clause, alleging that the acts complained of are contrary to equity, and that the complainant has no adequate remedy at law, and the prayer for process to bring the defendants into court and answer the bill, etc. We are now to inquire what changes upon this mode of pleading have been effected by the Code ; and how far and to what extent the old common-law declaration, and [*39] the bill in equity * have been blended into the complaint created by the Code. In the first place it is to be remarked that the Code has abol- ished the distinctions between pleadings and the forms of proceed- ing in actions at law and suits in equity. It has gone, or pretended to go, farther. It has abolished the distinction not only between legal and equitable forms, but between legal and equitable rcTne- ' Mitford's Eq. PI. 76, 77. ^ Lube's Eq. PI. 371, 372. SEC. III.] GENERAL CHANGES EFFECTED BY CODE. 21 dies. This great and radical change, the abolition of the distinction between actions at law and suits in equity, mid of the form of such actions and suits, is the foundation of the system introduced by the Code, and is contained in th'e following section : " The distinction between actions at law and suits in equity, and the forms of all such actious and suits heretofore existing, are abol- ished, and there shall be, in this State, hereafter, but one form of action for the enforcement or protection of private rights, and the redress of private wrongs, which shall be denominated a civil action." ' The language of this section, if litei-ally construed, would seem to be, not only to destroy the distinction existing in the modes of obtaining relief which characterized the proceedings in courts of law and of equity, and to blend the two separate jurisdictions into one, bu.t to change the very nature of those distinct remedies which were formerly sought in the separate tribunals. The remarks of the commissioners upon this subject seem to strengthen this view of the question. Its chief object, they say, is to [*40] declare the leading principles which lie at the * foundation of the whole proposed system of legal procedure, and without which very few, if any, essential reforms can be effected in remedial law." Some of the earlier cases under the Code, however, seem to have given this section a more restricted meaning. In Rill v. McCarthy," at the Madison special term, it was held that, while the Code had abolished the distinction between law and equity, so far as the forms of action and pleadings and proceedings are concerned, yet, that a distinction was still to be recognized between legal and equitable causes of action, at least so far as the mode of trial was concerned. At the Dutchess special term, in the same year, it was held that the Code which had abolished the forms of actions had retained the principles which govern them.* And in the ISTew York superior court, at general term,' the doctrine was more fully and distinctly laid down, that, though the Code had abolished the distinction between legal and equitable remedies, it had not changed the inherent difference between legal and equitable relief. Justice Sandfoed, in delivering the opinion of ' Code, § 69. '' McMaster v. Booth, 4 How. Pr. 437. ' See First Rep. Com. of the Code ; ^ Linden v. JSeplurn, 3 Sandf . 668 ; see, also, tlie Preamble to the Code. 5 How, 188. « 3 C. R. 49, June, 1850. 22 ON pleadi:nG in general. [ch. i. the court in the latter case, sa^'s : " We imagine a much broader effect has been claimed for the abolition of the distinction between legal and equitable ]-eniedies than was ever intended Ijy the legis- lature. The first section of the Code shows what was intended by the word " remedies." It is limited to actions and special [*41] proceedings, and the declared object of the * preamble to the Code is simply to abolish the distinction between legal and equitable actions. There is no ground for supposing that there was any design to abolish the distinction between the modes of relief known to the law as legal and equitable, or to substitute the one for the other in any case." In this case it was held that where the plaintiff demanded a judgment of forfeiture of a lease, for breach of conditions, and to be put in possession of the prem- ises, he had no right to an injvmction in the same action to restrain the defendant from making alterations in the building, etc., in violation of the covenants in the lease, the former being equiva- lent to an ejectment at law, and the latter being purely equitable relief, and the one being totally inconsistent with the other. But the court permitted the injunction to stand on the stipulation of the plaintiff not to take judgment for the forfeiture, or delivery of possession of the premises, with liberty to amend the com- plaint so as to ask for damages. In the same court it was held,' that, notwithstanding the aboli- tion of the distinction between the forms of action at law and suits in equity, yet, that even in the pleadings, or the manner of stating the facts constituting the plaintiff's cause of action, a dis- tinction was still properly to be made between the statement of a matter requiring purely a legal remedy, and one which heretofore would have been classed as equitable. While in the former case it is necessary to state only the facts constituting a cause [*42] of action substantially (without regard to form) in * the same manner as in a declaration, yet, in the latter case, it is often necessary to state, in the complaint, facts which will bear upon the granting of costs, or of the particular relief demanded as formerly stated in an equity pleading. T shall have occasion, in the next section of this chapter, to con- sider more fully the doctrine attempted to be established by some ' Howard v. Tiffany, 3 Sandf. 695. SEC. III.J GENERAL CHANGES EFFECTED BY CODE. 23 of the cases, that a distinction is still to be recognized under the Code between the rules to determine the sufficiency of pleading in cases for legal and for equitable relief. This has been \-ery ingeniously urged, in two or three of the earlier cases, which will be hereafter noticed especially by Mr. Justice Selden, in Wooden V. Waffle,' and in Rocliester City Bmik v. Suydam,^ and also in the recent case of Le Roy v. Marshall and others,' by the late Justice Baeoulo, with his usual acknowledged ability. But the doctrine, as will be hereafter noticed, does not seem to be approved, the current of authority being, it is believed, the other way. I notice the above cases here for the purpose merely of presenting a connected view of the decisions upon the question now under discussion, namely, as to whether the Code has actually abol- ished the distinction between the modes of relief known to the law as legal and equitable relief. This, it is held, in all these cases, has not been done. In Wooden \. Waffle, Justice [*4:3] Selden" lays "'■' down the rule that the constitution itself establishes a distinction between law and equity, and the legislature did not intend to blend the mode of proceed- ing at law and in equity any farther than was compatible with both jurisdictions. It did not intend to, and could not, ab- rogate "distinctions which are inherent in the nature of thii:gs." Similar views are expressed by him in the case of lioohcs- ter City Bank v. Suydum. While Justice Barculo reiterates and enforces these views in Le Roy v. 3LarshaU and otTiers, above cited, in the following emphatic language : " Indeed, it would be matter of astonishment, if we \\ere permitted to wonder at any thing in this line, that anj^ man of ' common understand- ing ' should have suifered the idea to enter his head, that legal and equitable proceedings could be moulded in the same form and be measured by the same rules. Eveay person who has studied and understands the law as a science, knows that there is substance in the distinction between actions, and that those requirements which superficial ol)servers call 'unmeaning forms and prolix statements,' were really wise and indispensable safe- ' 6 How. Pr. 145, Monroe Special Knowles v. Gee, 8 Barb. 300 ; Merrifield Term, Oct., 1851. v. Cooley, 4 How. Pr. 373. 2 5 How, Pr. 316 ; see, also. Anon. 1 » 8 How. Pr. 373, Dutchess Special C R. 49 ; Floyd v. Dearborn, 2 C. R. 17 ; Term, June. 1853. 24 ON PLEADIWfi IN GENERAL. [CH. 1 guards, and protections in administering the most important, as •well as the most intricate, of human sciences." So also in Crary v. Goodman^ which was a decision at the general term, Mr. Justice Sill, in the opinion of the court, says : " I can perceive nothing in this language indicating any design to dispense with equitable actions in cases in which they [*4:4] have been previously required to defend or enforce *a party's rights. On the contrary, the continuance of con- troversies distinguished as legal and equitable^ is contemplated in terms, and the object avowed is to provide a mode of proceeding which may be used in both." The same justice, in MillUdn v. Cary,^ while fully recognizing the abolition of all distinction in ihe pleadings between causes of action, legal and equitable, still recognizes a distinction between legal and equitable relief, remarking, " there are actions of legal and equitable cognizance, between which, as heretofore, the constitution and laws recognize a distinction." [It is now well settled that the Code did not affect the substance of the difference between legal and equitable actions, and the pleadings therein,' although both kinds of relief may be obtained in the same action.* And the old rule in regard to the amount necessai-y to confer jurisdiction upon a court of equity is abrogated."] Admitting, then, the abstract doctrine insisted on in these cases, that the principles of equity jurisprudence still exist, as contradistinguished from the principles governing actions at com- mon law, and that a distinction is still to be recognized between legal and equitable modes of relief the more important question will arise, how are these principles and this distinction to be practically applied ? In other words, is the distinction, under the Code as it now stands, and in the light of the later decisions, so far as it concerns the mode of proceeding in a civil action, of any practical utility ? In determining this question, it is only neces- sary to consider it in its results, and in the practical application which was sought to be given to it under former decisions. Thus ' 9 Barb. S. C. 657. " Lattin v. McGarty, 41 N. Y. 107. 2 5 How. Pr. 272. » Sarsfield v. Van VaugJmer, 15 Abb. " Reubens v. Joel. 13 N. T. 493 ; P7iU- 65 ; Braman v. Johmon, 26 How. 28. Ops V. Gorham, 17 id. 270 ; Voorhis v. Ghikls, 17 id. 354; Ooulet v. Asseler, 23 id. 328, post, marg. p. 67. SEC. III.] GENERAL CHANGES EPEECTED BY CODE. 25 one of ttie results which, was thought legitimately to follow the principle that the code had not abolished the inherent distinc- tion between legal and equitable relief, was that indicated in [*45] the class of cases just mentioned, * Wooden v. Waffle, Le Hoy V. Marshall, Rochester City Ba^ik v. 8uydam and others, namely, that the rules of pleading in equitable and legal cases were not the same ; or, as it is expressed in the language of the judge who decided the case last mentioned, that " the state- ment of the facts in a complaint should be in conformity to the nature of the action. If the case and the relief sought be of an equitable nature, then the rules of chancery pleading are to be applied to it; otherwise those of the common law." ' This doc- trine, however, as I shall have occasion to show more at large in the next section, has not been sustained by that class of cases which follow the decisions in Williams v. Sayes,^ and Millikin V. Cary," and which have been regarded as establishing a rule more in concurrence with the letter and spirit of the Code. Another result of this principle was thought to be that indicated in Hill V. McCarthy* and Crary v. Goodman,'' namely, that legal and equitable causes of action necessarily required different modes of trial ; but this, it is evident, does not result from any inherent difference in the nature of the two classes of actions, it depending entirely upon the provisions of the constitution and statutes, as will be more fully shown hereafter." Thus, fof exam- ple, an action to recover the possession of real estate is to be tried by a jury, and an action to compel a specific perform- [*46] anee* of a contract to convey real estate is triable by the court, not because of any inherent difference between the two classes of cases, but because, by the constitution, the former is embraced within those issues for which the trial by jury is to " remain inviolate forever ; " and the latter, not coming within this definition, is triable by jury only if the court so order; the court having the power in every case to order the whole issue, or any specific question of fact, to be tried by a jury.' Another consequence resulting from the distinction alluded to, was thoTight ' See, also, Burget v. Biasell, 5 How. ■• 3 Code R. 49. 192 ; Moyd v. Dearborn, 3 Code R. 17 ; '9 Barb. S. C. 663. Carpenter v. West, 5 How. 53. ' See post, cli. VIII, § 2. = 5 How. Pr. 470. ' Code, § 254. = 5How.Pr.373. 4: 26 ON PLEADING IN GENERAL. [CH. I, to be as in the case of Otis v. Sill,'^ that the principles of law and equity could not be administered in the same action so as to allow a complaint to demand both legal and equitable relief; or, as in Grary v. Goodman,' that an equitable right in a defendant could not be interposed as a defense to an action to recover the possession of land ; or, as in Goohran v. Webh," that a defendant could not, in an action of ejectment, in his answer denying the plaintiff's title, set up an equitable defense looking to affirmative relief; or, as in Wooden v. Waffle,^ if an equitable defense to a purely legal action could be set up, that the answer could not go beyond a defense, and insert facts with a view to affirmative relief. In regard to these and similar decisions, it is suffi- [■*47] cient to remark that they have been swept away by* express provision's introduced into the Code. Section 167, as amended, provides that, in the cases mentioned in that section, " the plaintiff may unite in the same complaint several causes of action, whether they be such as have been heretofore denominated legal or equitable, or both." Section 150 declares that "the defendant may set forth by answer as many defenses and counter- claims as he may have, whether they be such as have been heretofore denominated legal or equitable, or both." And section 274, as amended, declares that the judgment in the action " may determine the ultimate rights of the parties on each side, as between themselves, and it may grant to the defendant any affirmative relief to which he may be entitled T Plowever true, therefore, may be the abstract proposition that the distinction between the principle upon which relief was administered in equity, and that by which it was obtained in an action at common law still exists, it is a distinction, which, for all practical purposes, is barren of results in its application to the ordinary remedies, and course of procedure in a civil action, no matter what may be the nature of the relief sought. While these principles, and the distinctions on which they proceed are to be carefully studied and traced to their sources, in order to a thorough and accurate comprehension of the precise kind and ' 8 Barb. S. C. 102 ; see, also, Ca- * 6 How. Pr. 145. This doctrine ia %oon V. President of the Bank of tltiea, also countenanced bj- the court of ap- 5 Code K. 110. peals in tlie case of Hnire v. Baker,! 2 9 Barb. S. C. 657. Seld. 357, a case under the Code of 1848. " 4 Sand. 653. SEC. III.] GENERAL CHANGES EFFECTED BY CODE. 27 measure of relief necessary for the protection of the right claimed, or for the redress or prevention of the wrong complained of, yet they can be of very little practical utility for any purpose of application to the mode of remedy furnished by the civil [*48] action of the Code. So far as the * pleadiugs and pro- ceedings in these actions are concerned, the Code has evidently designed (and that design is more apparent from the amendments above noticed) to provide an uniform system, and to furnish one set of rules to govern every class of actions, and every mode of relief known to the law. These views seem to be directly sanctioned by the court of appeals in the case of Giles v. Lyon^ in which, alluding to the section under consideration, and also to the preamble to the Code," that court, per Gaedinee, J., says : " The legislature, by the section above quoted, sought to accomplish the object indicated in the preamble, by abolishing the formobl distinction between law cund equity. They were to be blended and formed into a single system, which should combine the principles peculiar to each and be administered thereafter, through the same forms and under the same appellation." Similar views of the question were taken by Mr. Justice Paekee even before the amendments to the Code above referred to. In Getty v. Hudson River Railroad Company,' on a motion to set aside an amended complaint because of the union of claims for relief both legal and equitable, he says : " We have certainly made but little progress in the reform that has been attempted if law and equity can now only be adminis- [*49] tered in separate actions. If such *is held to be the present rule of practice, the very object of having law and equity administered in the same tribunal and in the same forms of proceedings will be defeated. It was formerly consid- ered a great evil that in a suit at law the plaintiif could be turned out of court, on the ground that his relief was in chancery, and that where a bill was filed in the court of chancery, it might be ' 4 N Y. 600. legal and equitable remedies should no - The preamble is as follows : longer continue, and that an uniform " Whereas, it is expedient that the course of proceeding, in all cases, present forms of actions and pleadings should be established," in cases at common law should be ^ 6 How, Pr, 260, Special Term, abolished, that the distinction between 28 ON PLEADING IN GENERAL. [CH. I. dismissed on the ground that the complainant had an ample remedy at law. The evil is still just as great as it was formerly, if a party can have only legal or equitable relief in the same action. In such case if he commences his action asking for equita- ble relief, as, for instance, a specific performance, and it turns out that he is not entitled to it, but only to legal relief, by way of dama^ ges, he might perhaps, if such strictness is to govern, be put to a new action to obtain redress. This certainly ought not to be ; and such a strictness is hostile to the whole spirit of the change that has been made." ' These views seem to be entirely in accordance with those of the commissioners of the Code, as will appear by refei-ence to their remarks explanatory of the nature and object of the section under discussion. Their design undoubtedly was to abolish all distinction between equitable and legal actions, not only as to the form of pleadings, but even as to the entire mode of proceeding, including the trial and judgment. In respect to the pleadings, they say : " "We propose to reduce the system of pleading to one of allegation merely, without reference to discovery, in the mode which will presently be suggested, so that the same form [*50] of allegation may be adapted to cases * which have here- tofore been distinguished as legal and equitable." And in abolishing that mode of pleading which enabled a party in equity to obtain a discovery of facts, or the evidence of facts in aid of a prosecution or defense, they provided another way to attain precisely the same thing. This brings us to a considera- tion of another branch of the subject. The general change effected by the Code in the pleadings, in actions, which heretofore would have been actions at law, consists mainly in the abolition of forms, technicalities, and fictions. It is sufficient if the pleadings are good in substance, without regard to technical omissions or defects ; and, instead of those fictions which the common law permitted, a statement of the facts con- stituting the cause of action is dow in all cases required. Under these restrictions the simple logical mode of statement used by the pleader in the old common-law declarations and pleas, with- out regard to form, will be in most cases sufBcient ; and so the 'To the same effect see post, 191,inarg. p. BEC. III.J GENEEAL CHAWaES EFFECTED BY CODE. 29 nile is understood and has been held to be under the Code. In the mode of pleading in that class of cases which heretofore would have been of equitable cognizance, a more extensive change has been efi'ected. Every pleading is now merely a statement of facts. We have already seen' what the old chancerj^ bill was. Besides the stating part which set forth the facts constituting the plaintiff's cause of action or ground of relief, the body of the bill usually contained also the charging part, setting forth [*51] various * collateral facts and circumstances as pretenses on the part of the defendant, and which the defendant was called upon to meet and avoid in his answer ; and also the inter- rogating part, setting forth specifically such questions as he desired the defendant specifically to answer, and that too in every variety of form so as to leave him no " loop hole to escape upon a negative pregnant." All this is done away with by the Code. The pleading can no longer be used in any form as an examina- tion. The defendant may be called upon to answer to the facts constituting the plaintiff's cause of action set forth in his com- plaint, but not to furnish, by his answer, evidence going to estab- lish those facts. If the plaintiff desire to avail himself of such evidence, he can pursue the course provided in the Code of exam- ining his adversary as a witness before or upon the trial. The whole system, as the commissioners remark, is reduced to one of allegation merely. Indeed very little is left of the old chancery bill, which can be useful or proper under the new system, except simply the stating part which, as will be hereafter shown," is entirely analogous to the statement of the defendant's cause of action in the old common-law declaration. The charging part, the interrogating part, and the jurisdiction clause are alike swept away. This important principle it will be useful to bear in mind, as it furnishes the key to the whole the- ory of uniformity in the pleadings in all civil actions, which the Code has undertaken to introduce. This important [*62] idea is very clearly and accurately developed *by Mr. Justice Haeeis.' The complaint, after setting forth the allegations of the plaintiff which constituted his cause of 1 Ante, mai-g. pp. 37, 38. 3 Olarh v. Hwrwood, 8 How. Pr. 470 ' See nest section of thia chapter. 30 OJSr PLEADIIfG IN GENERAL. [CH. I. action, went on to allege a variety of pretenses and charges, in the usual form of a bill in equity. The court, in granting a motion to strike out these allegations, remarked : " We have in this extract a very fair specimen of the system oi pretense and charge which prevailed so extensively in chancery pleading. The replication being general, the plaintiff undertook to antici- pate in his bill the matters which might be brought forward in the answer by way of defense. These he set forth as pretenses on the part of the defendant, and as a kind of replication m advance, and to meet and avoid such matters, if they should be set up in the answer, he proceeded to allege, in the form of charges, certain other matters; such charges the defendant wag required to answer, and thus the plaintifi' obtained the benefit of an examination of the defendant upon all the matters embraced in the charging part of the bill. I need scarcely say that noth- ing of this kind is allowable under the Code. Although it has been strenuously contended that the principles of equity pleading are still retained, yet certainly, so far as it relates to pretenses and charges, they are no longer allowable. The plaintiif is to state the facts which constitute his cause of action and nothing more. If the defendant should, as the plaintiff anticipates, set up by way of defense, the matters which he has sought to con- [*53] trovert or avoid, in advance, the provisions * of the one hundred and sixty-eighth section of the Code, allow him to controvert such matters of defense, in any way he can, without any allegations for that purpose, in any pleading. Thus the sys- tem of pleading, in this respect at least, is ^ simplified^ The pleader, by whom this complaint was drawn, has lost sight of this change in the mode of pleading. He has made what would have been a good specimen of a bill in chancery. But, as a pleading under the Code, his pretenses and charges are irrelevant." These important and fundamental changes, the abolition of forms of action, the introduction of a system of uniformity in all pleadings, ^vhether of legal or equitable causes of action, and the reduction of that system to one of simple allegation, without reference to discovery or the examination of the defendant, are the basis of the new system introduced by the Code. The com- missioners, indeed, seem to have contemplated not only an SEC. III.J GENTERAL CHANGES EFFECTED BY CODE. 31 uniformity of pleading, but an uniformity of practice tlu'ougliout, and down to the close of tlie action. " It is a leading feature," they say, " of our proposed plan to require, in all cases, a judg- ment adapted to the established rights of the parties ; and we can see no difficulty in incorporating into it, as a portion of an uni- form system of i^ractice, a form of execution, which shall adapt itself to the judgment." ' It should be remarked, in conclusion of this subject, that while the Code thus recognizes an uniformity of pleading in all actions, and permits legal and equitable claims and demands for [*54] relief to be *united in the same complaint, yet it has been held, it is thought upon sound principles, that inconsistent claims for relief cannot be so joined. Thus, in Linden v. Ilep- Tywrn^ above cited, the decision is placed upon the express ground that the relief asked, namely, a forfeiture of the lease for breach of conditions, and an injunction to restrain defendant from vio- lating these conditions, is inconsistent, and the decision is placed expressly on that ground, for it is held in the same case that, although the "inherent difference between legal and equitable relief" is not changed by the Code, yet that the proper relief, whether legal or equitable, will be administered in the same form of action. " In some eases," says the court, " alternative relief may be prayed, and relief be granted, in one or the other form, in which cases an action at law was necessary before to attain the one form, and a bill in equity to reach the other. A suit for specific pei'formance is one of that description. But we think inoo7isistent relief Q&n. be no more asked now than it could under the old system." The rule laid down in Getty v. The Hudson River Railroad Company, above cited, does not differ in substance. The claims for both legal and equitable relief which may be united in the same action are only those which are not inconsistent. Indeed, the decision in Linden v. Hepiurn is cited with approbation in the opinion delivered in that case, and the rule intended to be laid down is manifestly the same. The amendment to the Code, passed subsequent to these cases, 1 See notes of Commissioners of the ' 3 Sand. 668. Code. 32 ON PLEADING IN GENERAL. [CH. I. [*55] which enables the plaintiff to " unite in *the same complaint several causes of action, whether they be such as have been heretofore denominated legal or equitable, or hoth, where they all rise out of the same transaction or transactions connected with the same subject of action," etc., does not, it is conceived, change this rule ; but while it allows the party to seek legal or equitable relief, or both, in the same action, it does not permit him to seek or allow the court to give judgment for two or more distinct kinds of relief that are inconsistent with, or repugnant to, each other. Indeed, this has been expressly held since the amend- ment, in a case at special term,' wherein the plaintiff sought to unite a claim for the recovery of real estate, with a claim for damages for obstructing him in the use of it to a greater extent than the defendant was authorized by his lease, and for interfering with the plaintiff's right of way over it. The amendment of the Code referred to, it was held, had reference only to the union of such causes of action as are consistent with each other, not of such as are contradictory. There is a discrepancy in such union which is contrary to the rules of good pleading, and, in the opinion of the court, not authorized by the Code. From these various decisions, and the sections above quoted, the following propositions, in respect to the general changes effected by the Code in pleading in civil actions, may be laid down : That, while the inherent difference between legal and equitable relief remains unchanged by the Code, the remedy in both classes of cases is the same. [*56] * There is no such thing as an action at law, as distin- guished from a suit or proceeding in equity. The juris- diction is merged in the same tribunal. The Code provides an uniform system of pleading, and but one form of action. Legal and equitable relief may be sought in the same action, and may be claimed in the alternative ; and the court will grant such judgment as the party may show himself entitled to from the facts established, whether compensatory in damages, or for specific relief, or both. But if both species of relief are claimed, they must not be ' Smith V. Hallock, 8 How. Pr, 73, per S. B. Strong, J. SBC. IT.] RULES TO DETEEMINE SUFEICIENCT. 33 repugnant to, or inconsistent with, each other, but must be such as may be embraced in the same judgment, as a claim for damar ges for breach of a contract, or an injury to property, with a claim for a specific performance of the same contract, or specific relief in respect to the injurj' complained of. The forms of action are abolished, but their substance and the principles which govern them are preserved. As to the manner of stating the facts in a pleading, and whe- ther a different mode of " allegation " is allowable, according to the different species of relief sought : That is, whether a party is to be held to the same strictness of statement in setting out his facts for specific relief, as for an injunction, a specific performance and the like, that he would be on a claim merely for compensa- tion in damages, it has already been shown the plaintiff may now, as before the Code, insert any allegation which may properly bear upon the particular relief sought. [*57] * SECTION IV. OF THE BULBS TO DETEBMINB THE STTPFICIENCY OF THE PLEADINGS. Under the old system this was one of the most important branches of the subject of pleadings. At common law a system of rules was applicable to every description of pleading in courts of law, many of them highly artificial and technical. The sub- ject, in all its bearings, formed one of the most difficult and abstruse branches of the study of law. The books are full of the subtlest distinctions, and the most curious refinements of logic, in the application of these artificial rules to the science of pleading. Many of them, indeed, perhaps most of them, are based upon reason and sound sense, and have their foundation in the very nature of legal remedies. But, on the other hand, many of them are the merest refinement of technicality, dealing with fictions rather than truth, applicable to the form and not to the substance of the pleading. Under the application of these rules, the science of pleading became an abstruse, artificial and formal science. Books and treatises innumerable were written to explain and illustrate it, and, although the legislature, from time to time, 5 34 ON PLEADING IN GENEEAL. [CH. i. made several important modifications tending to simplify the pleadings in actions at law, yet, down to the time of the adoption of the Code, it may be stated that form and not substance was the distinguishing feature of the system. [*58] *A different system of pleadings grew up in the courts of equity, regulated by different principles and governed by diiferent rules, but, at the same time, rules which, if less subtle and technical, were no less formal, precise and unbending. It is the object of this section to ascertain what part, if any, of these rules are still remaining, what are their force and effect, and what their aj plicability to our present system, and how, under that system, is the sufficiency of the pleadings to be determined and ascertained. The commissioners of the Code, in their explanatory remarks, say, that the change in the mode of pleading is the key of the reform proposed by the Code. Without it, they should despair of any substantial and permanent improvement in modes of legal controversy.' Accordingly, in the section submitted by them and adopted by the legislature, they abolished entirely all forms of pleading, legal and equitable, then existing, and, at one blow, overturned the whole system of pleading as then understood and practiced in the courts of law and equity. The section is as follows : " All the forms of pleading heretofore existing are abolished, and hereafter the forms -of pleading in civil actions, and the rules by which the sufBciencj of the pleadings is to be determined, shall be those which are prescribed in this act." ' In the amendments, made at the next session of the legislature, 1 849, this section was modified as follows : [*59] * '■ All the forms of pleading heretofore existing, inconsist- ent with the provisions of this act, are abolished ; and here- after the forms of pleadings in civil actions, in courts of record, and the rules by which the sufficiency of the pleadings is to be deter- mined, are modified as prescribed by this act."' The legislatiire of 1852 restored the section substantially as it originally stood, by striking out the words above in italics, and inserting tlie word " those " in place of the words ''modified as." ' First Report of Com. p. 137. « co^le, § 140. SEC. IV.J ETJLES TO DETERMINE SUFFICIENCY. 35 Under this section of the Code, as it originally stood, and as amended, a variety of decisions have been made, which will be briefly noticed. In the first place, however, it may be well to inquire generally the object and effect of the amendments to the section under consideration, made by the legislature, as above noticed. In the section as originally passed, all forms of pleading were abolished, and the rules by which the sufficiency of the pleadings were to be determined, were declared to be those prescribed by the Code. The design of the amendment of the legislature of 1849 seems to have been to limit the operation of this section; and instead of a general annihilation of all forms and precedents, and a repudiation of all former rules of pleading, to retain so many of those settled rules and principles as did not conflict with the Code. The rules to test the sufficiency of pleading were declared to be inodified as prescribed by the act. Only such forms of pleading as were inconsistent with the provisions of the act were declared abolished. The language of the section, as thus amended, is too plain for misconstruction. It left the [*60] whole of the old theory and science of pleading, *not repugnant to the Code, iu existence, and made the well- settled rules and established principles of pleading applicable in substance, without regard to form, to the new theoiy established by the Code. But the practical question which now arises is, did the legislature, by repealing this amendment and restoring the section to where it originally stood, mean to establish a con- trary rule ? In other words, did it mean to declare that no form of ])leading which had heretofore been in use, should be hereafter used or deemed sufficient, and that no rule of pleading should be deemed applicable to the new system ? It would seem, from a careful consideration of this section, that such could not have been the intention of the legislature. Indeed, if we descend to a verbal criticism, it may be said that the amendment of 1849 did not essentially change the meaning of the section from what it was before. The original section simply abolished the forms of pleading, and the amendment added " inconsistent with the provisions of this act." JSTow, the Code throughout clearly and manifestly abolishes every thing like 36 ON PLEADING IN GENERAL. [CH. I. form in pleadings, independent of the section under consideration. All mere " forms " of pleadings are inconsistent with the act. and in that sense there was no necessity to limit it. The origuial section (and as it now stands) cannot certainly mean that if a plaintiff choose to state his case in the simple form allowed by the old system of pleadings in an action for assault to the person, or trespass for carrying away goods, that for that reason [*61] alone the pleading is bad, and may be demurred to * for insufficiency. Indeed, the contrary of this has been repeat- edly held, both before and since the amendments. Thus, in Howard v. Tiffamy^ in the New York superior court, Justice Sandfoed considers it sufficient, in actions for the recovery of money or real property, or the possession of personal property, to state the facts constituting the cause of action substantially as they were formerly stated in a declaration. So in the case of Houghton v. Townsend and others,' which was a decision at the general term. Justice Maevhj" remarks : "I do not understand that the mode of stating the/acfe which constitute the cause of action has been essentially changed or modified by the Code; and I have supposed that the old precedents, stating the facts constituting the cause of action, might be, as a general rule, safely followed, avoiding the mere conclusions of law, or state- ments of evidence." Similar views are expressed by Justice Selden, in his ably reasoned opinion in the case of JDows v. Hotch- Mss,' wherein he comes to the conclusion, that to aver the legal fact of indebtedness, without an additional averment of a promise to pay, is siifficient to sustain an action upon an account ; and that the old common count in debt, and not indebitatus assumpsit, would be the proper form of a complaint in such an action under the Code. The question, as to how far the common counts in assumpsit may be properly used in actions under the Code, will be considered more at length hereafter.* "l^o one will [*62] deny," he says, " that the law, as it has ""'heretofore existed, is, so far as the Code is concerned, still in force, except as it has been changed by its enactments, either expressly or by necessary implication." ' 3 Sand. 695. > 10 Leg. Obs. 381 ; cited also in Voor- '' 8 How. Pr. 447. hies' Code, note to g 140. * See post, ch. iv,^§ 3. SEC. IV.J RULES TO DETERMINE STJPEICIENOT. 37 It results, then, from this, that the first clause of the section, as it now stands, is nothing more than an aholition of the forms of pleading, doing away with the necessity of any technical or fictitious statements, and leaving the party to adopt such a mode of allegation as may be adapted to his cause of action, whether that mode be logically such as the old system established or not. The same may be remarked in respect to the second clause of the section. It cannot be said that the legislature meant to abro- gate all rules to test the sufficiency of pleadings except those prescribed in the act. The act itself does not pretend to furnish rules to determine in all cases what shall be a sufficient " state- ment of the facts constituting a cause of action or defense." This must still rest upon those well-established general rules and prin- ciples of pleading which existed at common law, and are precisely as applicable to the new system of pleading under the Code (except where modified and abrogated in terms), as are the settled and established common-law principles which govern estates appli- cable to that subject, except where in terms modified by the Revised Statutes.' If anj^ other doctrine than this were established, it would [*63] lead to endless contradiction and confusion. * Thus, for example, it is laid down as a general rule of pleading under the old system, that it is not necessary to allege what the law will presume ; ' as in an action for slander imputing theft, the plaintiff need not aver that he is not a thief, because the law pre- sumes his innocence till the contrary be proved. It will not certainly be pretended that the Code, in abolishing the old rules of pleading, has made it necessary in such an action for the plain- tiff to aver that he is not a thief. So, too, it was not necessary to allege matters of which the court, ex officio, takes notice, as, for example, to set forth a public statute ; nor to allege circumstances necessarily implied, as, if the plaintiff plead that he is heir to A, to allege that A is dead.' The abolition of forms of actions and rules of pleading does not affect these general principles of the common law, and, although the Code prescribes nothing in their place, they are manifestly, from necessity, as applicable to plead- > Enowlea v. Gee, 8 Barb. S. C. 300 ; « Steph. on PI. 353. m^y v. Bennett, 1 C. R. N. S. 349, 350. » Steph. on PI. 353 ; 3 Sand. 305. 38 ON PLEADING IN GENERAL. [CH. I. ings now as formerly. The conclusion at which we arrive is, that the late amendment of this section by the legislature, restoring it to where it originally stood, has not essentially altered its signifi- cation from what it was made by the amendment of 1849. The adjudged cases upon this section of the Code seem to be entirely in accordance with this view of the question. I have already alluded to some of these cases; and two or three others may be here properly noticed. In Boyce v. Brown^ decided [*64] at a general term in the fourth district, the pleadings ''^-^vere under the original Code. The court, in that case, recognizes not only the old definitions of pleading, but the pre- existing rules, except where abrogated in terms by tha Code. Justice Hand, in delivering the opinion of the court in that case, says : " The forms before in use are not, in some respects, ' legal forms,' particularly as to the classification of actions; but the manner of stating the claim or defense, as required by the Code, with this exception, and that of certain formal parts still remains ; and in other respects I have not been able to discover that any great change has been made in the substance of pleading. The pleader may use his own language, but the necessary matter must be there, and be stated in an intelligible and issuable form, capa- ble of trial. Facts must still be set forth according to their legal effect and operation, and not the mere evidence of those facts, nor arguments, nor inferences, nor matter of law only." In the same opinion, the court also recognizes the existence and applica- bility to the present system of those well-settled rules, that plead- ings should not be hypothetical, nor argumentative, nor in the alternative, nor destitute of truth and certainty. In the case of the Rochester City Banh v. Suydavn, and others," Justice Selden lays down the rule still more definitely, and holds expressly that all pre- existing rules of pleading, both at law and in equity, which are not expressly abrogated by the Code, and which can properly be made applicable to the new sys- [*65] tem of pleadings, are still in force." * This was a case in which the plaintiff' claimed, what under the old system would have been equitable relief, to wit, to reach certain securities in ' 7 Barb. S. C. 81. KnoioUs v. Oee, 8 Barb. S. C. 300. And « 5 How. Pr. 316. see MaMaster v. Booth, 4 How. Pr. 427. 2 See, also, opinion of same justice in SEC. IV.] RULES TO DETERMINE SUFFICIENCy. , 39 the hands of the defendant, and to be subrogated to his rights in respect to them. In testing the sufficiency of the pleadings in that case, the court applied the rules which governed equity pleadings, and refused to strike out certain statements alleged to be redundant, on the ground that they embraced matter of evi- dence merely. This is, doubtless, going farther than the majority of the judges have yet gone, and, indeed, the same learned jus- tice, in a later case,' seems to have modified his opinion in one respect, namely: That mere matters of evidence cannot be inserted even in a complaint claiming purely equitable relief, although the rules to determine the sufficiency of the pleading in these cases, in all other respects not inconsistent with the express provisions of the Code, were still the old rules of equity pleading. The true rule is undoubtedly expressed by the same justice, in the more recent case of Doios v. SotchJciss, above alluded to. Reasoning from the proposition that the Code has not attempted to prescribe what shall constitute a cause of action, and therefore that any facts which would have sustained an action before the Code will do so now, he lays down this comprehensive, and it i*s thought, entirely accurate, general principle : " To determine, therefore, whether a complaint contains sufficient facts or [*66] not, we have to look at the rules established * prior to the Code. If it contains all that was required by those rules, it is good ; if it falls short, it is bad. The only change in this respect is this ; at common law, averments were sometimes required to sustain the action in the particular form in which it was brought, which would otherwise have been unnecessary. Assumpsit, for instance, would not lie without the averment of an undertaking or promise, although all the facts, necessary to show the existence of the debt, were set forth. The Code has changed this, so that now a complaint is good if it contain facts sufficient to have sustained an action before in any form. The application of the principle to the particular case under discussion was this ; that an implied promise, in an action on an account under the Code, was neither a necessary nor a proper allegation. It was, imder the old system, a pure fiction — a mere implication of law — not necessary to be proved, and only necessary to detei-- ' Wooden v. Waffle, 6 How. 146, Monroe Special Term, Oct., 1851. 40 . ON PLEADING IN GENERAL. [CH. I. mine the form of the action. A simple allegation of the fact of indebtedness, as set forth in the old common count in debt, wonld have been sufficient.' To the same efl'ect is the language of the 'New York superior court, by Duer, J., in i^z-y v. Bennett:' " The rules for determining the sufficiency of pleadings to which the Code refers, and which, except as modified, it has been fre- quently and very propei-ly decided that it retains, are [*6T] manifestly rules of pleading, and not of law." And *again : " The Code, in abolishing a division of actions that was in a measure merely arbitrary, and all forms of pleading inconsistent with its own provisions, has been careful not to abolish those rules of a sound logic, by which the sufficiency of pleadings is to be determined. Kules which were purely technical, and had a reference solely to the particular form of the action in which they were applied, are, doubtless, abolished ; but those which, having their foundation in reason and good sense, are an important aid in the investigation of truth, and manifestly tend to the further- ance of justice, retain all their original force and authority." The conclusion at which we arrive on this point cannot be more clearly or better expressed than in the language of Justice Hae- Eis :" " The principles of pleadings, whatever the system, are always the same. Its office is to present the cause of action on one side and a defense on the other. This is not less true under our present system than under the former. ISTames are changed, useless forms and technical rules are abolished, but the principles remai/n unchanged!' Are the same rules applicable in pleading a cause of action or defense, which is purely legal, and one which heretofore wo^dd have heen classed as equitable ? [It is now settled that the system of pleading is iiniform, in cases of a legal and of an equitable character, although, of course, the substance of a pleading in each class of actions was not affected by the Code ;^ and this, notwith- standing the judgments cannot be assimilated."] ' See this subject further considered ^ N. Y. Ire Go. v. N. W. Ins. Co., 23 under the head of " Common Counts," N. Y. 359 ; Phillips v. Oorliam.ll id. post, ch. iv, § 3. 373 ; Cole v. Bcynolds, 18 id. 7(i ; Luttin 2 5 Sandf. 54 ; 1 C. R. N. S. 349. v. McCarty, 41 id. 109 ; ante, marg. p. ^ Buddington v. Davis, 6 How. Pr. 44. 402. ^.BMaer v. Xc«, 33 How. 351] * And see post, ch. viii, § 5. oEC. IV.] EXILES TO DETERMINE SUFFICIENCY. 41 This question has assumed some importance, from its frequent discussion, and also from an apparent conflict of decisions in re- spect to it. Mr. Justice Selden, in the cases above cited, [*68] holds the negative *of the question.' The views ex- pressed by him in these cases seem, in the main, to accord with the principle recognized in the cases (referred to in the pre- ceding section) of Linden v. Ilephurn' and Howard v. Tiffany^ in the superior court of New York, particularly the latter case. A similar doctrine seems to be countenanced in a decision of the supreme court of the first district, at general term, in the case of Coit V. Coit.^ MncHELL, Jiistice, in that case, says : " The Code expressly declares that it is expedient that the present forms of action and pleadings in cases at common law should be abolished, but uses no such language as to forms of action and pleadings in equity (see recital at beginning of Code). [But it does say, also, that it is expedient that the distinction between legal and equitable remedies should no longer continue, and that an uniform course of proceedings in all cases should be established.] Section ^40 only abolishes the forms of pleading heretofore existing, so far as they are inconsistent with the Code, and modifies the forms of pleading as prescribed by that act. So far, therefore, as the equity form of pleading is not inconsistent with the Code, it does not seem to be repealed. Section 469 abrogates the former rules and practice of the courts, so far as they are inyonsistent with that act, but expressly provides that where they are consistent with the act, they shall continue in force, subject to the power of the courts to relax, modify or alter the same." Mr. Justice Baeotjlo, in Le Hoy v. Marshall and others," strenuously contends [*69] for the same rule, basing it *upon the essential difference between the origin, nature and object of legal and equi- table proceedings, and the impossibility of administering law and equity in precisely the same forms. His very ingenious argu- ment coincides, in the main, with the views of Mr. Justice Sel- den, in Rochester City Bamk v. Suydam., his conclusion being that the attempt of the Code to blend the forms of legal and equitable pleading into one system, and to test the same by one 1 See ante, pp. 58, 59. « 6 How. Pr. 53. 2 3 Sandl 668. « 8 How. Pr. 373 3 3 id. 695. 6 42 ON PLEAJDINft IN GENERAL. [CH. I. set of rules, is an attempt which canuot, in the nature of things, be carried out in practice, for, he remarks, " nature has made some laws, and these it is difficult to repeal." If these positions are henceforth to become the settled practice of our courts, we arrive at the conclusion that the Code has failed in accomplishing what it has professed, and that we still have, if not two different systems of pleading, at least two different sets of rules to deter- mine the sufficiency of pleadings in different actions. It becomes necessary, then, to examine this subject somewhat in detail. It seems to be entirely settled and assented to on all hands, as is truly remarked by Justice Selden in Wooden v. Waffle, that in a purely legal action imder the Code — [that is, an action claiming compensation in damages, or to recover specific, real or personal property] — the common-law rule which confined the allegations of fact in every pleading to such as were essential to the cause of action or defense, and which, if put in issue, would be decisive of the suit, is still jn force, and whatever is inserted beyond these essential facts in such an action will be stricken out on [*Y0] motion. This proposition is more * fully developed* by the same justice in Dows v. Hotchhiss, and is, I believe, fully sustained by all the decisions. It seems to be also settled that even in a pleading for specific relief — or what formerly would have been called an equity pleading — the old equity rule that the pleader might insert matters of evidence, or any collat- eral matter, the admission of which might be material in estab- lishing the allegations in a pleading, is now abolished. In other words, that a pleading under the Code cannot be used for the purpose of examining the opposite party; and whenever any such collateral matters are introduced for that purpose, or other matters of evidence merely, they will be struck out on motion.' What, then, is the point of difference which still remains? It is whether the same strictness of allegation in stating "facts" is required in an action for equitable as for pureh^ legal relief? Whether the same rules govern the two modes of pleading, and whether nothing can be properly inserted in the one which can- not stand the uniform and infallible test of the other? Perhaps the discussion of the question is not a profitable one, ' See ante, inarg. pp. 50, 51, and cases there cited. SEC. IV.J EXILES TO DETEKiriWE StJFFICIENOT. 43 and can lead to no practical results. Indeed, the distinction between the two classes of cases cited may be found, after all, to lie in words rather than in things — in form, and not in substance. The difficulty seems to me to have arisen from a failure to dis- criminate between the different offices performed by an ordinary bill in chancery, that is to say, its double object, first, as 2i pleading governed in all respects by the principles which regu- [*71] lated the * mode of stating a declaration in an action at law, and secondly, as an examination regulated exclusively by rules of equity practice unknown to the common-law system. The latter of them, as has been remarked on a former page, is abolished, and the former retained by the Code. ISTow, if it be true that the part of a chancery bill which filled the office of a pleading, i. e. . the stating part (and which the Code retains) was always, even under the old system, governed, in the manner of its statement, by those logical rules and principles which equally governed the pleadings in an action of ejectme.nt, or an action on the case at common law, then the whole difficulty has found a solution, the discordant decisions are reconciled, and the conclu- sion is at once reached, that the Code has done precisely what it professes to do in the establishment of an uniform system of pleadings, and one set of rules to determine the sufficiency of the samie. In order to bring this matter to the test, let us again carefully examine the structure and object of the chancery bill, especially under the rules recognized in our own courts of equity immediately prior to the Code. ' ' It must be recollected," says the chancellor, in Hawley and others v. Wolverton,^ " that the bill in chancery is not only a pleading, for the purpose of bringing before the court and putting in issue the material allegoiions and charges upon which the complainant^ s right to relief rests, as in a declaration in a suit at law, but it is also, in most cases, an examination of the [*Y2] defendant upon oath, for the purpose of obtaining * evi- dence to establish the complainant's case, or to counter- prove or destroy the defense, which may be set up by such defend- ant in his answer. The complainant may therefore state any matter of evidence in the bill, or any collateral fact, the admifi. > 5 Paige, 533. 44 ON PLEADING IN GENERAL. [CH. I. sion of which, by the defendant, may be material in establishing the general allegations of the bill as a pleading, or in ascertain- ing and determining the nature and extent, or. the kind of relief to which the complainant may be entitled consistently with the case made by the bill." The same views, which indeed may be regarded as elementary and fundamental principles of equity pleading under the old system, are again very clearly stated by the chancellor in The Mechanic^ Bank v. Levy.^ "In framing an ordinary bill in chancery, the pleader has a two-fold object, discovery and relief. The allegations in the bill so far as the question of the complainant's right to relief is concerned, are sub- stantially in the same form as the averments in a declaration at loAD. And the pleader must state his client's cause of action in such a manner that the main facts upon which his right to relief depends may Tie put in issue and triedP So much in respect to the question of relief ; the bill should contain allegations of fact entitling the party to it substantially in the same form ae aver- ments in an action at law. They must be such facts as could be put in issue and tried. And further, they must be allegations of fact, stated with as much brevity and precision as possible, [*73] not of inference or *argument.'' But the complainant was also entitled to a discovery., and accordingly, under the old equity system, he might, to quote from the same opinion, " state any matters of evidence in his bill which may be material in establishing the main charge, or in ascertaining the nature or kind of relief proper to be administered, and may interrogate the defendant as to these matters." The disco^-ery is now abolished by the Code. The pleading can no longer be used as a method of examination, or to obtain evidence in aid of the relief sought. N"o tiling is left of the old equity mode of pleadings but the simple allegations of facts material to the relief sought, and which go to establish the plain- tiff's case. Apply this rule to pleadings under the Code, and it will recon- cile the differences of opinion that have existed in respect to pleadings in cases of legal and of equitable relief. It will estab- lish an uniform system, and one set of rules for all eases of ' 3 Paige, 606. ■ 5 How. Pr. 471. SEC. IV. J RULES TO DETERMINE SUEPICIENCY. 45 pleading. Instead of the test that the allegation can be made the subject of a "material," or, as it is elsewhere said, a "decisive issue," apply the equity rule of pleading, that the pleader must state such facts, and such only, as are material to the par- ticular relief he claims, and as may be properly ^^ j>ut in issue and tried." These facts, of course, will vary with the nature of the cause of action. The statement of the case in an action for the partition of land, or for the foreclosure of a mortgage, must, of necessity, be as different from that of an action for a [*T4] tresjjass, or on *a simple contract, as the judgment in the one is different from the judgment in the other. The prayer for relief is different, and the very nature of such relief is dissimilar ; and yet the Code provides one form of judgment in all cases " which shall specify clearly the relief granted, or other determination of the action," and an uniform mode of enforcing such judgment by its appropriate kind of execution. I am, therefore, unable to perceive any thing in the Code which author- izes or warrants the application of different rules in determining the sufficiency of the pleadings in different actions. These views seem to me to be sanctioned in a variety of decis- ions that have been made under the Code. Thus, in Williams V. Hayes^ Justice Haeeis, in sustaining the theory of an uni- formity of pleadings, lays down very clearly, and, as we think, very correctly, the doctrine that under the Code " neither the rules by which the sufficiency or insufficiency of pleadings in the common-law courts, nor those which were applicable to pleadings in courts of equitable jurisdiction, can be adopted as a sure guide." By this we do not understand him to mean that the established principles of pleading at common law, so far as the substance of the issue was concerned, without regard to form, were to be disregarded, or that those general rules which tested the sufficiency of the pleadings, both at law and in equity, were of no farther utihty under the new system. All that we understand by this is, that one class of rules is [*75] not to be used as an infallible guide in '""determining the sufficiency of the pleadings in one species of action, and another class in another. The Code abolishes the dis- ' 5 How. Pr. 471. 46 OK PLEADING IN GENERAL. [CH. I. tinction between legal and equitable remedies, and provides an uniformity of pleading as well as of proceeding, in all cases. Or, as he very intelligibly expresses it elsewhere in the same opinion : " It was not the intention of the legislature, in adopting the Code, to continue the distinction between common-law and equity pleadings. On the contrary, it was intended that there should be but one system of pleadings. It was not intended that the rules of common-law pleadings should be applicable to one class of cases, and those of chancery to another. On the contrary, it was intended, that neither the rules of common-law pleading, nor those of equity pleading, should be exclusively applicable to any case of pleading under the Code. In every case the criterion to judge of the suiSciency or insufficiency of the pleading is the same." This "criterion" is defined by the same learned judge to be " whether the allegation can be made the subject of a material issue." Perhaps such a criterion may be the proper one in both classes of cases if the words material issue are to be understood, not as a single issue decisive of the whole case, but as an issue Tnaterial to the relief sought to he established in the OMtion. For example, in an action for damages for a trespass, the issue was narrowed down to a single material point, which, if admitted or proved, was decisvoe of the whole action. In a suit for a specific performance, or for an injunction, the particular relief [*76] demanded might rest upon a variety *of facts and circum- stances, one of which, if denied or disproved, was not entirely decisive against the party claiming ; and yet, such a fact might be, or might become in the failure of proof of other allega- tions, a material fact to entitle the party to the particular relief sought, and therefore properly set forth in the pleading. While, therefore, it may not be too much to say, that, althoiigh the Code provides for and requires an entire uniformity in the mode of pleading, as well as of pi'oceeding in all cases, and while the same general rules may bo applied to test the sufficiency of pleading, yet that the statement of facts in a pleading is to be made in accordance with the particular kind of relief demanded. This was manifestly the intention of the framers of the Code. They propose, they say,' " to reduce the system of pleading to one ot ' First Rep. of Comrs. 75. SEC. IV. J EULES TO DETEKMINE SUFEICIENOY. 47 allegation merely, without reference to discovery, so that the sameybrm of allegation ynay l)e adajyted to cases wJiich have here- tofore heen distinguished as legal and equitable.'" What was said by the court in Minor v. Terry, ^ is also strongly corroborative of the theory that an uniformity of pleading in all cases is not only practicable, but has been actually established by the Code. After remarking that what the Code intended to abolish was merely the action for discovery in aid of the prosecu- tion of another action, the court says : " It should not be forgot- ten that a complaint in equity, in some of its important aspects, bears a close analogy to a declaration in the old action [*77] on the case. In that action the plaintiff was *accustomed to set out the facts of his case, entitling him to relief, par- ticularly, and at large, as may be seen by consulting the prece- dents in Chitty's Pleading in actions on the case for torts to the person, to personal property, and to real property. It may be suf- ficient to refer to the declarations in actions of slander and libel where special damages are claimed. The pleader cannot content himself by stating the legal conclusion that the defendant uttered actionable words against him whereby he sustained damages. But he must set out the particular words and in many cases the particular circumstances under which they were uttered ; and when special damage is claimed, the jparticula/r way and manner hy which the loss or damage occurred. Under the present system, since the forms of action are abolished, every action is one upon the case ; that is, founded on the particular facts of the case set forth in the complaint. So, in a complaint in equity, in most cases where an injunction is prayed for, it is competent to set out the facts which constitute the foundation of the right with particularity and minuteness." The reasoning of Mr. Justice Geidley in the foregoing opinion and his proposition that " every action is now an action on the case," is approved by the sub- sequent Q2&&oi Field Y. Stoned In every pleading the plaintiff is required to set forth the particular facts which constitute his cause of action. By the facts thus alleged he must stand or fall. If in the judgment of the court they constitute a valid cause [*Y&] of action, and are established by proof or otherwise,* the » 6 How. Pr. 208, per Geidlet, J. « 7 How. Pr. 12. 48 ON PLEADING IN GENERAL. [CH. I. plaintiff' recovers the judgment appropriate to the facts. The judgment is secundum allegata et prohata. Substantially the same views were advanced by Mr. Justice Sill, at an earlier period, in the case of Millikin v. Carey.'' It was an action to set aside an assignment made to hinder and defraud credit- ors. The complaint, which was similar to a former chancery- bill, contained, in addition to the allegation of facts, a detail of circumstances, confessions of defendant, etc., constituting evidence to establish charges of fraud and insolvency of assignee. This complaint was held to be bad, and the court remarked, allud- ing to section 69 of the Code : " To allow a mode of pleading in suits of equitable cognizance, different from that required in suits at law, would frustrate the obvious design of this legislation. It would be in conffict with its plain provisions and perpetuate, at least in part, the very mischief at which it was especially aimed. The intention of the legislatm-e manifestly was to permit a party to state the facts of his case, in his complaint, as they may exist, without imposing upon him the responsibility of determin- ing in advance, whether relief should be administered to him accord- ing to the rules of legal or equitable jurisprudence. The court pro- nounced such judgment as the facts, which are stated and proved, require, whether it be legal or equitable. If the diff"erent modes of pleading remain, as is contended, it is now as important as ever to determine beforehand to which class tli action belongs, and a mistake on this point must produce the same mischief which [*79] the framers of the constitution, and the legislature, *have tried to prevent. Except to obtain a discovery, no neces- sity ever existed for detailing the evidence even in a bill in chan- cery. It was useful only to enable a complainant to examine his adversary as a witness. "When this was not required it was only necessary, as now, to state the facts. A detail of the evidence did not aid the prosecution, nor did its omission limit the scope of the testimony or affect the remedy. The examination of a defendant by bill of discoveiy is now done away, and with it all occasion for resorting to the peculiar mode of pleading to which it gave rise. The granting of judicial relief must always be pre- ceded by an ascertainment of the facts \ipon which the right to it '5How.Pr.273. SEC. IV. J KULES TO DETEBMINE SUFFICIENCY. 49 depends. It is the office of pleadings to present the facts, as tliey are claimed by the parties respectively to exist, and I have not been able to conceive why the facts should be accompanied by a statement of the evidence where equitable relief is demanded, and such statement be omitted when the application is for a judgment at law. There seems to be no aiithority in law or reason for con- tinuing, in this State, a distinction between the pleadings in actions at law, and those in suits in equity." I deem it unnecessary to dwell longer upon this subject or to cite further cases in supporting these views.' The general prin- ciples established by them, namely, that every action is now an action on the case ; that there never was, in reality, any [*80] essential difference in the mode of stating an action on *the case at law, and the facts going to establish a right to relief in equity ; that facts only are to be stated which can be "put in issue and tried," either by the jury or by the court ; and that so much of the chancery system of pleading as related to discovery merely, and the examination of the opposite partj', has no place in the system devised by the Code, ' sustains, in my judgment, the theory of a perfect uniformity of pleading, in every kind of action, and in the rules to determine the sufficiency thereof. [It is admitted in Wooden v. Waffle,' a case which is cited to sustain the contrary doctrine, that even an equity plead- ing can no longer be made use of for the purpose of examining the opposite party, and that whatever is introduced with that view alone must be stricken out. In that case. Justice Selden ordered the whole answer to be struck out ; an answer, however, which, it will be seen at a glance, would not have been good even under the old chancery system, within the rule laid down by the chancellor, in Hood v. Inman.^] JSTor do I see any difficulty in the application of these principles to those very cases in which a contrary doctrine has been inti- mated. Thus, in Howard v. Tiffany,^ in an action praying for a prehminary and perpetual injunction in respect to the use of 1 The following cases are to tlie same ^ 6 How. 146. purpose : Getty v. Hudson River B. R. ^ 4 Johns. Ch. 437. Co., 6 How. 2G9 ; Meld v. Stone, 7 id. •'3 Sand. 695. 12 : Clark, v. HarwooA, 8 id. 470 ; also, Oould and others v. Williams, 9 id. Bl. 7 50 ON PLEADING- IW GENERAL. [CH. I. demised premises contrary to the covenants and conditions of a lease, the court refused to strilce out certain allegations of fact upon which, in the aggregate, the plaintiff rested his right to the particular relief demanded. In that case, it was very properly said in regard to such actions, that " the facts constituting the cause of action spoken of in the Code, are not merely the facts upon which the plaintiif 's ricjht to ask relief is founded, but those words include all such facts as are necessary to found the [*81] joa/rtioular *relief demanded, and to enable the court to give the proper judgment in the action." A perpetual injunction was the particular relief sought to be obtained by the judgment; and the facts showing the right to the injunction were therefore material allegations. But there is nothing in the opinion to authorize the inference that facts may be alleged, even in such a pleading, which are not "material" to the sj)ecitic relief sought, or which cannot properly be " put in issue and tried ; " or, if the injunction be only asked provisionally, and not as a part of the general relief in the action, that the facts going to show the right to the injunction can be set out in the com- plaint for the purpose of enabling the plaintiif to move for such injimction.' Nor does the decision in any respect conflict with the principles laid down by Justice Geidlet in Minor v. Terry.' So, too, in the later case of Mann v. Morewood^ in the superior court, similar principles were applied to a legal action, it being held that, in order to enable the court to judge of the relief that ought to be given, the transaction, in all its material circum- stances, must be set forth in the complaint. It is not enough to set forth what in judgment of law would be the legal conclusion from certain facts proved or admitted, as might have been for- merly done in the old common-law money counts, but the facts themselves, not the conclusions, as in an ordinary action on the case, must be set forth, without prolixity, but with reasonable fullness and certainty. Nor would it be difficult to recon- [*82] cile with these doctrines the actual decision in *Le Roy v. Marshall and others,' heretofore noticed, and that, too, without adopting the conclusions arrived at therein, that from > 3 C. R. 64 ; 3 id. 350. ' 5 Sand. 557. « 6 How. Pr. 208 ^ 8 How. Pr. :!73. SEC. IV.] RULES TO DETERMINE SUPFICIElSrCT. 51 tlie nature of things the same rules cannot govern legal and equitable pleadings. It may be true, as was there stated, that "a legal claim is a single proposition, which must stand in all its parts or fall ; while an equitable claim may be composed of numerous independent facts, all of which, or only a portion, may be required to satisfy the court." But it is none the less true that these " independent facts " must be such only as are consti- tutive of a cause of action, such as go to make up the title to relief, and as can be " put in issue and tried ; " otherwise, pre- cisely as in the case of a legal action, they are not properly pleadable. That such was the intention of the commissioners of the Code is, I think, clearly apparent. The argument which is urged against the practicability of attaining this result, based upon the inherent difference between legal and equitable relief, the diifer- ent forms of judgment, and the different modes of trial required for the two classes of cases, has been already sufSciently answered by what was said in the first section of this chapter relative to the origin of equitable remedies, and of the different forms and modes of pleading at law and in equity. As to how far the Code has effected an uniformity of trial of issues of fact in all cases, see post, ch. viii, § 2. [*83] *CHAPTER II. OF THE PARTIES TO AN ACTIOjST. It is well said that there are no rules connected with the science and practice of pleading more important than those which relate to the persons who should be the parties to an action. The remark was equally true of pleadings in equity as of pleadings in actions at law. One of the most difiicult matters in framing a bill in chan- cery was often fonnd to consist in determining who should, and who should not, be the parties, notwithstanding courts of equity were never tied down by the narrow and artificial rules applicable to actions at law. It cannot be reasonably expected, therefore, that this difSculty is entirely surmounted by the Code, or, that under its provisions there is really more certainty in determining who should be proper parties to an action than heretofore in chancery pleading; for the Code has adopted, with slight modifications, the rule in relation to parties which has heretofore obtained in courts of equity.' The Code has made a radical and fundamental change in the practice in one respect. It found the rules respecting [*84] joarties to actions as widely different *in actions at law and suits in equity, as the pleadings and proceedings were. The direct and immediate parties having a legal interest, and they only, could be required to be made parties in a suit at law. But courts of equity frequently required all persons who had remote and future interests, or equitable interests only, or who would be directly affected by the decree, to be made parties ; and the court would not, if such persons were within the jurisdiction, and capable of being made parties, proceed to decide the cause without them. Persons having very different, and even opposite interests, were often made parties defendant, the general rule being that all persons were to be made parties who were either legally or equitably interested in the subjeGt-matter or r-esiclt of the suit, if, in a general sense, it was practicable to do so.^ The Code undertakes to abolish these distinctions, 'and provides general rules respecting parties in all cases and forms of action. The commissioners say they had a three-fold purpose in view : first, to do away with the artificial distinctions existing in the courts of law, and to require the real party in interest to appear in court as such; second, to require the presence of such parties as are neces- sary to make an end of the controversy j and third, to allow other- wise great latitude in respect to the number of parties who may be brought in.' ' Per Mason, J., 5 How. Pr, 100. • Report of Com. 123. " Story's Eq. Pi., § 72. SEO. I.] APPEARANCE OF PABTIES. 53 It will be the object of the present chapter to inquire what changes have been effected by the Code, and what rules established, in respect to the parties to civil actions. The chapter is [*85] dinded into three *sections. 1. Tlie appearance of parties. 3. Who are tlie proper parties plaintiEE. 3. Who are the proper parties defendant. SECTION I. ON THE APPBAEANOB OF PABTIES In actions at law any one might appear in person, except infants and corporations aggregate : the former must appear by next friend or guardian, the latter by attorney.' As a general rule, a married woman could not sue or be sued alone, either upon contracts made by her before or after marriage, except in ease she was divorced, or the husband was dead in law, or his death was presumed by reason of absence.^ "When she appeared alone she must appear in person, but husband and wife might appear by attorney.' [In a suit brought against husband and wife to foreclose a mortgage given by them, if process be served upon the husband only, and he retain an attorney who appears for both, the husband and the wife, she cannot, after the death of the husband, avoid the judgment on the ground that she was not served with process.* If no attorney had appeared for the wife, the judgment, without service of process upon her, would not have affected her rights. If the action be one in which the interest of husband and wife do not conflict upon service being made upon the husband, it is his duty to appear and answer for both.' But in a suit by hus- band and wife, it is the suit of the husband, and she is not bound by the judgment thereon." And where the action is against hus- band and wife for a tort by the wife, she is entitled to a stay of proceedings until her husband is served, although he resides out ' Tidd, 69, 70 ; 3 Johns. 193. Many authorities are collpcted in Mac « 1 Chit. PI. 38, 56. Naghten's Sel. Cas. 76, Duke of Chan- = Dunl. Pr. 86. dosx. Talbot. ' Foote V. Lathrop, 53 Barb. 183. '^Hughes v. Evans, 1 Sim. & Stu. 185, ' Foote V. Lathrop, 53 Barb. 183. 188, and Dunlap'a notes to Banks' ed. 64 PAETIES TO THE ACTION. [OH. II. of the State.' Although the wife live separate from her hus- band.° It has been held that in such an action the husband has a right to control it, and even to confess judgment ;° but if, as has been recently held,* the execution may be issued against the property of both, there seems to be no reason, upon principle, why the wife should not have a right to appear separately and control her defense. The husband now clearly has no right to compro- mise or release an action brought by her as sole plaintiff for an iniurv to her person or character.' Where the action affects the separate property and individual rights of the wife, she must be treated as a feme sole and served with process, and has a right to ajiswer separately.' The husband is not a necessary party in an action against the wife for an injury done by her separate prop- erty.'] Idiots were required to appear in person, and a lunatic of fall age in person or by attorney ; and the committee of an idiot or lunatic could not maintain an action on behalf of the lunatic ; the suit was required to be brought in the name of the lunatic' in an action con- cerning his realty as well as his personal estate." The [*86] *committee was neither a necessary nor a proper party, either as plaintiff or defendant, in any action respecting the person or property of his ward. [The action should be in the name of the lunatic by his committee, although since the Code it 7na/y, in some cases, be in the name of the committee.'"] Though it was a contempt of court to sue a lunatic after the appointment of a committee without the permission of the court," yet it has been repeatedly held that the lunatic was liable to be sued in an action at law, and the judgment obtained was not only valid, but regular." The lunatic, and not the committee, was the proper party to appear and defend the suit.'' So far as respects the bringing of an action by an idiot or luna ' Eorton v. Payne, 37 How. 374, and ' Rmoe v. Smith, 55 Barb. 417. Bee post, mo/rg. p. 93. 8 ghelf . on Lunacy, 395 ; 24 Wend. 85. ^ White V. Semer, 6 Irish L. E. 465. » 1 Hill, 97. s Coolidge v. Paris, 8 OMo St. 594. '» Clark's Chy. 119, Moak's notes ; * Flamagam, v. Tinen, 53 Barb. 587. Persons v. Warren, 14 Barb. 489, 490 ; ' Post, ma/rg. p. 93 ; Laws 1860, p. Bams v. fencer, 24 N. T. 386. 158, § 7 ; 4 Bdm. St. 516 ; Ball v. Bui- " 5 Paige, 489. laa-d, 53 Barb. 143. '« 3 Barb. 153, and cases tliere cited. « Byett V. North Am., etc., 30 Wend. '* See Clarke's Chy. 119, Moak's 570 ; ffarley v. BiUer, 9 Abb. 400 ; 18 notes. How. 147 ; see post, marg. p. 88. SEC. l.J APPEAEAWCE OP PAETIES. 55 tic, the rule of the common law was changed by the statute of 1845/ which permits receivers and cuniuiittees of lunatics and habitual drunkards to sue in their own names for " any debt, claim or demand transferred to them, or to the possession and control of which they are entitled as such receiver or committee." Before the passage of the Code, therefore, all actions, other than those mentioned by this statute, must be brought in the name of the lunatic, and all actions of every kind against him personally, without joining his committee. We will presently inquire what eifect the Code has produced upon this practice. The rule in respect to the appearance of parties in equity was somewhat different, except in the case of infants and corporations. The first appeared by next friend or guardian, and could [*8T] not sue or be *sued in person, or appear by attorney." Corporations aggregate appeared by a solicitor.' In suits in equity, though, in general, a husband and wife ought to join,* yet, where the wife demanded relief for her separate property, or for a separate maintenance settled by the husband, she might sue alone.' In respect to her separate estate, she was looked upon as a feme sole. In a court of equity, though not at law, husband and wife were considered as two different persons. The wife, by her next friend, might sue her husband, and the husband file a bill against his wife." The wife appeared in the action by her next friend,' and when the suit was brought, to recover her separate property, the husband was not a proper party as co-plaintiff." A bill filed by the husband, in the name of him- self and wife, was his bill merely, and the decree made in such a suit was not binding upon her in any future litigation. [Pie could receive and acknowledge satisfaction, and, after her death, have scire facias upon the judgment."] Where the interests of the husband and wife were in conflict, he could not join her as co- complainant, but in such case she must be made a defend- I 3 R. S. (3d ed.) 115. » Story's Eq. PI., 6 63 ; 10 Paiffe, 193 , ^Mitl Eq.25. 6 Barb. S, C, 403. 2 1 Barb. Cb. Pr, 87. » Mann v. Marsh, 35 Barb. 70 ; but ^ 5 Johns. Ch. 196. see Acldoy v. Tarhox, 31 N. Y. 564, ^3 Ves. Sen. 453; Ed w. on Parties, that the husband's name may be 144 ; 13 Ves. 190, 266. stricken out and the judgment allowed « Id. 5 Paige, 581. to stand in the name of the wife. ' 5 Paige, 517. 56 PARTIES TO THE ACTION. [CH. II. ant.^ If the husband was abroad, or banished, or an alien enemy, or had abjured the country, a married woman might exhibit a bill alone, as if she were a, feme sole.'' If the wife was a cestui que trust, and it was necessary [*88] she should file a bill, it was done by her next * friend.' By statute a wife might exhibit a bill for divorce a vinculo, without a next friend,* but it was held that in a case for a limited divorce she must appear by her next friend.' Where the wife was defendant, it was a general rule that, in the absence of her husband, she must appear by guardian." But where the bill was brought by the husband, she was treated as a fem.e sole, and no guardian was necessary in such a case.' In general, husband and wife must appear and defend together," but if she claimed in opposition to him, or lived separate from him, or disapproved of the defense he wished her to make, she might obtain an order to defend the suit separately.' If a married woman under age was a party she appeared by guardian." The rule in respect to the appearance of idiots and lunatics in suits in equity was also widely different from that which prevailed in the courts of law. Idiots and lunatics almost always sued by their committees ; they also answered and defended by their com- mittees," and the lunatic need not be made a party defendant." He might, however, be joined, though this was a mere matter of form, and the committee, as of course, put in the answer as his guardian." Where the lunatic and committee were sued jointly, the latter, if he had no interest adverse to the lunatic, woiild, as a [*89] matter of course, be appointed * his guardian ad litem}*- Though a lunatic was not a necessary party in a bill to set aside his own acts," to obtain payment of a debt,'" etc., etc., yet he was an indispensable party to a bill for the recovery of lands, partition and other actions concerning real property." It was " 9 Paige, 255 ; 3 Barb. Cli. 397. '» Edw. on Parties, 155. 2 Coop. Eq. 204. " Edw. on Parties, 205, 311. ' Edw. on Parties, 146. i= 2 Johns. Cli. 243. * 2 R. S. 144, § 89 ; 2 Paige, 108. " 3 Johns, Ch. 343. <■ 8 Wend. 370. '* 6 Paige, 3:!7 ; 1 C. R. N. S. 309. 6 Edw. on Parties, 154. " 7 Johns. Ch. 139 ' 3 Atk. 478, " 3 Paige, 470. 8 Coop. Eq. 34. " 3 Barb. Cb. 24. » Coop. Eq. 30, 31 ; 1 Johns. C. 24 ; 2 id. 139 ; see ante, marg. p. 85. SEC. I.J APPEARANCE OF PARTIES. 57 also laid down as a general and a safe rule that a lunatic ought to be made a party in all actions for the benefit of his estate, and the bill should be filed as his bill by his committee, or in the names of both. The general practice was, even where the lunatic was not a necessary party, to unite him with his committee.' A similar rule would apply to all kinds of t)-ustees. The cestui que trust, if not always a necessary, was almost always a proper party, with the trustee, in actions concerning the trust fund or property. Where the trustee commenced an action, it was gener- ally requisite to make the cestui que trust a party, otherwise the latter would neither obtain relief nor be bound by it.° [A gen- eral guardian, appointed by a surrogate, may maintain an action in his own name upon a contract made with him as such.''] In enforcing a demand arising prior to the creation of the trust, against a trustee as defendant, it was not necessary to make the cestuis que trusts parties, if the absolute disposition of the prop- erty was vested in the trustees.* We are next to notice how these rules relative to the appear- ance of parties are affected by the Code. And first : In respect to infants, the Code provides, [*90] * § 115. "When an infant is a party, he-must appear by guardian, who may be appointed by the court in which the action is prosecuted, or by a judge thereof, or a county judge." This rule of the Code is precisely the same as that which here- tofore existed, both at law and in equity. An infant can in no case appear in person. He must appear by guardian, who is appointed by order of the court for that purpose in the manner prescribed by the Code,^ and the rules of the court." ISTo process whatever can issue in behalf of an infant plaintiff until a guardian has been appointed,' and the provisions of the Revised Statutes, it has been held, are not changed in this respect by the Code. If it appear that the next friend was appointed after the issuing of the summons, it will be set aside as irregular.' If no guardian has been appointed at all, or the complaint is in the name of the > 7 Johns. Cli. 139. ° Section 116. ' Edw. on Parties, 158 ; 2 Jolins. Ch. « Sup. Court Rules, 61-70. 238 ; 1 Paiffe, 20. ' Hill v. Tlwcker, 3 How. Pr. 407. 8 Thomas v. Bennett, 56 Barb. 197. " Id. Gosliiiff v. Acker, 25 Wend. 4 Coop. Eq. 74 ; Edw. on Parties, 161. 638. 8 58 PAETIES TO THE ACTION. [OH. II. infant alone, and it appear upon its face that the plaintiff is an infant, the defendant may demur on the ground that the plaintiff has not legal capacity to sue. If the fact of the plaintiff's infancy does not appear on the face of the complaint, the objection must be taken by answer. But, if the defendant answer withoiit raising the objection either way, it will be held to be waived.' [Otherwise as to an infant defendant." The omission to procure the appoint- ment of a guardian is an irregularity merely.' If an infant sue without guardian, the defendant may move to set aside the pro- ceedings,* or take advantage of the infancy by answer.' But after answer, it is too late to raise objections to such irregularity.' After trial and verdict, a plaintiff' cannot procm'e the appointment of a guardian for an infant defendant, nunc pro tunc.'' Although, if properly appointed, the omission to file a bond may ' be so remedied, after an infant arrives at majority, he will, if necessary to protect his right, be allowed to interpose a new answer.'] It has been held, that under the Revised Statutes, which pre- scribe that a gxiardian must be appointed " before any [*91] process can be issued in the name of an *infant who is sole jplaintiff^''^ it is unnecessary to have a next friend appointed where the infant is joined as plaintiff with others ;" and in another case it was held, that a guardian for an infant wife \x\xo joins with her husband was unnecessary, unless the action was to recover her separate property.'' [So where a jiidgmeiit was obtained against an infant under the joint debtor act."*] The above cases, it seems to me, cannot be safely followed as precedents. The Code declares that, when an infant " is a party " he must appear by guardian, no matter whether as sole plaintiff" or jointly with adults.'' When an infant wife joins her husband, no doubt ' Code, g§ 144, 147, 148 ; Hastings v. ■> Boylen v. McAvoy, 29 How. 278 ; McKinUy, Seld. Notes, Ct. of App., Oct. Fairweather v. Satterly, 7 Rob. 546. 1853; CVo,9'/tas?!.v.iym/i(7s*<'™.17N.Y. 221. ^ Stepfienson-^. Stephenson, 6 Paige, * Fairweather v. Satterly, 7 Rob. 546. 353 ; Groglian v. Livingston, 17 N. T. 3 Butter V. Puekofer, 9 Bosw. 638 ; 218. Groglian v. Limngston, 17 N. Y. 221 ; '2 R. S. 446, ^ 2. Barnard v. Seydrick, 3 Abb. N. S. 48. '° Eulhert v. Newell, 4 How. Pr. 93 « Freyherg v. Pelerin, 24 How. 202. " Cook v. Rawdon, 6 How. Pr: 333. 5 Treadwdl v. Brudcr, 3 E. D. Smith, " Mason v. Denison, 11 Wend. 612, 597 ; Groglian v. Limngston, 17 N. Y. affirmed, 15 Wend. 64. 321. ^^ Boylen v. McAvoy, 39 How. 279 « Pan-ka V. Parfa, 19 Abb. 161. SEC. I.J APPEABAWOE OP PARTIES. 59 it would be proper, as under the former equity practice, to appoint the husband as guardian, unless, as in the case referred to, the action was to recover her separate property. An infant must also appear in all cases by guardian where he is a party defendant. No judgment can be regularly taken against an infant by default,' nor can his guardian make any admissions to affect his rights injuriously, or suffer judgment by default. ° The answer is termed the answer of the guardian, and not of the infant, and in cases where an oath was necessary, it was sworn to by the guardian.' The answer could not, however, be read against the infant.'' ISTor could a complainant by any form of pleading compel an infant to become a witness against him- self.' [*92] *There does not seem to be any thing in the Code incon- sistent with the application of these principles in the new system. In Jlill v. Thaoter, supra,' it was said, that the guardian of an infant plaintiff might, in that character, have verified the complaint under the Code.' No proceedings can be taken against an infant defendant after the commencement of Jhe action until his guardian is appointed. The infant himself has twenty days to make application for the appointment of his guardian, but he may apply after that time unless the plaintiff forestall him in his application. ' Afpea/rcmoe of married women. The equitable rule which recognized the separate legal existence of the wife in cases con- cerning her individual property, and actions between herself and husband, is enacted by the Code. Section 114 provides : When a married woman is a party, her husband must be joined with her, except that, 1. When the action concerns her separate property she may sue alone. ii. When the action is between herself and her husband, she may sue or be sued alone. And in no case need she prosecute or defend by a guardian or next friend. 1 2 Code. R. 38. * 5 Paige, 536. 2 4 Paige, 165. « 3 How. Pr. 407. 8 1 Barb. Ch. Pr. 148. ' See post, mwrg. p. 374. ■i 6 Paige, 353 ; AnabU v. Anable, * MeOonnell v. Adams, 1 C. R., N. S. 34 How. 93. 114. BO PARTIES TO THE ACTION. [OH. II. The words in italics are the last amendment made in 1857. Before this amendment it was held in the case of Coit v. [*93] Coit,' and affirmed* on appeal by the general term of the first district,' that a wife could not sue her liusband with- out a next friend, except in the single case of a suit for absolute divorce, provided for by statute, and that the Code had made no change in this respect. The same rule was adhered to by the justice who decided that case at the special term, on another occasion.' In the superior court of New York, Justice Campbell, after consultation with his associates, held the contrary doctrine.* Justice MoNsoN ' held, that, in all cases between husband and wife, the latter, unless an infant, might sue alone, without a next friend, and the supreme court of the eighth district have made a similar decision. The above amendment, however, seems to have settled the rule that, where the wife sues or is sued by her husband, she need not, unless an infant, appear by her next friend. [In an action against a married woman for a wrong against her person or charac- ter, she may now sue alone.' Biit for a tort ly her, the husband must be joined.' So, in an action upon an indebtedness contracted by the wife before marriage," when the complaint and judgment should be special and conform to the language of the ^tatute, that judgment be awarded against the husband for the amount of the separate property of the wife, or any portion thereof acquired by him since July 18, 1853, by any ante-nuptial contract or other- wise.'" The amount of property the husband so received should probably be determined bj' the judgment, and the execution con- form thereto. This provision is not repealed or afl'ected by the later statutes, which are not inconsistent therewith." It was the common equity practice, and was repeatedly -held in >4How. Pr. 232. Payne, 27 How. 374; Flanagan v. = 6 How, Pr. 53. Tinen, 53 Barb. 587, 37 How. ISO ; An- ' Forrest v. Forrest, 3 Code R. 254. derson v. Bill, 53 Barb. 338 ; and see < 2 Sand. 715. ante, marg. p. 85. ' 3 C. R. 40 ; 4 Pr. 346, Otaego special » Laws 1853, p. 1057 ; 4 Edm. St. 515 ; term, 1850. Horton v. Payne, 37 How. 374 ; i « 3 C. li. 183. Whit. Pr. (3d ed.) 174, 175. * ' Laws 1860, p. 158, S 7 ; 4 Edm. St. '» Foote v. Morris, 12 Leg. Obs. 61 616 ; Ball v. Billiard, 52 Barb. 141. " Laws 1860, p. 159, S 8 : 4 Edm « Marsh v. Potter, 30 Barb. 506 ; Ma- St. 516 ; Laws 1862, p. 345, § 5 ; 4 Edm' lone V. Stilwell, 15 Abb. 425 ; Horton v. St. 517. SEC I.J APPEAEANCE OF PARTIES. 61 this State before the Code, that a suit in relation to the wife's separate property, where the interests of the husband and wife were in conflict, could not be brought in the names of both. The wife must prosecute by her next friend, and the husband should be made a party defendant ; or, where the husband brings an action, and his interests may conflict with those of the wife, she should be made a party defendant. Tlie action in the [*97] name of husband *and wife, being regarded as the suit of the husband alone, and the wife being entitled to her separate action, in respect to her separate property, such an action would not preclude her from bringing another by her next friend. The husband ought not, therefore, and cannot, be joined with her where the wife's interests conflict with his.' These rules, it seems to nie, on both principle and authority, are fully applicable to the system of pleadings devised by the Code. [If the action relate to the wife's separate property, the husband ought not to be made a co-plain tifi', although, if he be, the court will strike out his name as a plaintiff'; ° or, if the husband be joined in an action concerning the wife's separate property, the defendant may demur to the complaint, on the ground that it does not state a cause of action in favor of the husband, when the complaint will be dismissed as to him.' In actions relating to real estate of the wife, where the husband has an estate, if he now have one, by the courtesy he may be joined as a plaintiff,* although it is better then to make him a defendant. A married woman may sue her husband for converting money belonging to her separate estate,' but not for slander," nor in ejectment ; ' but the husband will be restrained by injunction from occupying a house which is the separate property of the wife, even though she reside therein, and the injunction operate as a divorce a mansa et thm'o.'''\ ' Story's Eq. PL, §§ 61, 63 and 63, and ' Whitney v. Whitney, 3 Abb. N. S. notes ; 2 Ves. 453 ; 7 Sim. 239 ; 1 Sim. 350, 49 Barb. 319. & Stu. 185 ; 6 Barb. S. C. 404 ; 3 Barb. « Freethy v. Freethy, 43 Barb. 641. Ch. 397 ; 9 Paige, 255; 10 id. 193; 3 ' Gould v. Qould, 39 How. 441. Barb. S. C. 493. » Green v. Green, 5 Hare (36 Eng. ^ Acldey v. Tarlox, 31 N. T. 564. Ch.) 400, note ; Kerr on Ini. (Eng. ed.) 2 Palmer v. Davis, 38 N. Y. 243. 331. ^ Ingraham v. Baldwin, 12 Barb. 9, aflSrmed, but point not discussed, 9 N. 'i. 45. 62 PAETIES TO THE ACTION. [OH. II. [*105] *Aiid so in an action for the partition or sale of real estate, held in common, the wife of the plaintiff is a proper and necessary party, and must be joined with her husband in the action [and if she be not, the objection may be taken by answer]. So held by Justice Ceippen in Eipple v. Gilhorn cmd others.^ These cases are not inconsistent with the principles above laid down, the decisions being placed on the ground that the husband or wife has an inchoate right, and, consequently, an interest in the prem- ises, and that the Code directs all persons having an interest in the subject of the action, and in obtaining the relief to be demanded, to be joined as plaintiffs. [*106] *The appearance of idiots, lunatics, etc., by their commit- tees, and of persons acting in a fiduciary or representative character generally, will be considered in the two following sec- tions under the heads of parties plaintiif, and parties defendant. It is not necessary that all the defendants should actually appear or be served with process in an action, in order to enable the plaintiff to proceed in the suit. When a summons shall have been served on one or more of the defendants, but not on all, the Code' provides that the plaintiff may proceed as follows : [*10'7] "1. If the action be against defendants, jointly * in- debted upon contract, he may proceed against the defend- ant served, unless the court otherwise direct ; and, if he recover judgment, it may be entered against all the defendants thus jointly indebted, so far only as that it may be enforced against the joint property of all and the separate property of the defendant served, and, if they are subject to arrest, against the persons of the defend- ants served ; or, 2. If the action be against defendants severally liable, he may proceed against the defendants served in the same manner as if they were the only defendants. 3. If all the defendants have been served, judgment may be taken against any or either of them severally, when the plaintiff would be entitled to judgment against such defendant or defendants, if the action had been against them, or any of them, alone. 4. If the name of one or more partners shall, for any cause, have been omitted in any action in which judgment shall have passed against the ' 8 How. Pr. 456 ; [aee, however, 1 ' Code, g 136. Story'a Bq. Jur„ § 6.56]. SEC. I.J APPEARANCE OF PAPvTIES. 63 defendants named in tlie summons, and such omission shall not have been pleaded in such action, the plaintiff, in case the judg- ment therein shall remain unsatisfied, may, by action, recover of such partner separately, upon proving his joint liability, notwith- standing he may not have been named in the original action ; but the plaintiff shall have satisfaction of only one judgment rendered for the same cause of action. And by a subsequent section of the Code,' where judgment shall have been recovered against joint debtors, those who were not originally summoned to answer the complaint may be summoned to show cause why they should not be bound by the judgment. It is only in case of joint debtors that a judgment, even in form, can be entered against a party who does not appear, or is not brought into court by service of process. Thus, in a suit brought against the heirs of a person dying intestate, it was held that, the statute creating no joint liability, a judgment in form could not be entered against those of the defendants not served." If the defendants are jointly liable, and not severally, [*108] the complaint and proceedings must be against *all the parties, and the judgment in form so entered, although all do not appear, or have not been served with process.' [And it is irregular to enter judgment against one defendant while the others remain parties to the record.* But the judgment should direct the amount recovered to be made of the joint property of both defendants, and the property of the defendants served,' and is a judgment only in form against the defendant not served. °] If, however, the defendants are severally as well as jointly liable, the complaint and judgment may be against the parties served with process alone.' There is nothing in the Code to prevent the application to a summons and complaint of the former prac- tice, which allowed a plaintiff to declare against one of several persons named in a writ which did not require special bail,' and to take judgment against such defendant, if severally liable, be- > Id., §375. '■foUer v. Wood, 30 How. 284, 1 « Stannard v. Mattice, 7 How. Pr. 4. Abb. N. S. 150. ' Medmnics and Fa/rmer&' Bank v. ' Stannard v. Mattice, 7 How. Pr. 4. iJi(Z«r, 5 How. Pr. 401; iaA«2/ v. ^ira^ow, ^ Trams and others v. Idbias and 13 Abb. 193. others, 7 How. Pr. 90. ^ Niles V. Battershall, 3 Rob. 146. ' Northern Bank v. Wright, 5 Rob. 605. 64 PARTIES TO THE ACTION. [CH. II. fore getting the other parties into court, or serving them with process. [If the plaintiff desire to proceed to a separate trial against a portion of the defendants, he should obtain leave to do so on application to the court.'] SECTION II. OF PABTIBS PLAINTIFF. The rule at common law, before the Code went into effect, was, that actions on contract must be brought in the name of the party in whom the legal interest was vested." The legal interest did not, in all cases, mean the ownership of, or prop- erty in, the contract. Thus a contract might be assigned, but a right of action for a breach of the contract did not [*109] pass with the assignment, except in the case of bills of exchange and promissory notes, where the contract was made transferable by law, so as to vest the property absolutely in the assignee.' And though in cases other than these, the contract became in fact the property of the assignee, yet a suit for the breach of it could not be in his own name, but must be brought in the name of the assignor or original creditor.* The assignee might sue in his own name on a new promise made to him, sub- sequent to assignment, for this was regarded in the light of a new agreement or contract.' If the assignor were dead, the assignee must sue in the name of the executors or administrators of the assignor. But by the statute of 1835,' if there were no executors, or the executors had no interest, or refused to prose- cute, the action might be in the name of the assignee. In equity the rule was directly the reverse. Courts of equity allowed and protected assignments, and the assignee, in whom was vested the equitable interest and right of property in the contract, was the proper person to avail himself of the remedy.' The assignor was neither a necessary nor a proper party plaintiff ; 1 Ward V. Dewey, 12 How. 195 ; Mor- « 1 Chit. PI. 17 ; 4 How.Pr. 63. ris V. Crawford, 16 Abb. 124 ; Ooodyear " 3 Black. Com. 442. V. Brooks, 4 Rob. 683, 688 ; but see ^ 8 T. R. 595. Gv,rnee v. Iloxie, 39 Barb. 547. « Laws 1835, ch. 197, p. 339. ' 1 Chit. PL 3. ■" 5 Paige's Ch. 539 ; 6 id. 598 ; 7 id. 21 SEC. II.J OF PARTIES PLAINTIFF. 60 or, as lias been well stated, "if the assignee sues at law he is turned out of court, and if the assignor sues in equity he is turned out also." Real party in interest must he plaintiff. The Code of Proce- dure has adopted, with slight modifications, the rule in [*110] relation to parties which has heretofore *obtained in courts of equity. With the exceptions mentioned in section 1 13, the suit must be prosecuted in all cases in the name of the party in interest, and the rule which has prevailed in equity, with these modifications, may be very safely applied.' By the rule in equity the plaintiff must be, at the time of the commencement of the suit, immediately interested in the subject-matter of it, and the suit could not be prosecuted in the name of a mere nominal plaintiff, as might have been done in an action at law, on a nego- tiable promissory note or bill. And it was a fatal objection, that some of the complainants showed no right whatever to participate in the relief sought." The section of the Code' which adopts the equity rule and requires every action to be prosecuted in the name of the real party in interest, except as provided in section 113, contains also the following restriction : " but this section shall not be deemed to authorize the assignment of a thing in action not arising out of contract^ It may be of importance briefly to examine this restriction, and to ascertain how far it extends. It has been held in this State, before the Code, that a cause of action arising in tort was not assignable, at least so as to enable the assignee to sue thereon, at law, in his own name.' Before the section was amended in 1851 by adding the above restriction, it was held, that the Code authorized the assignment of [*111] a right of action for a tort, so as to enable *the assignee to sue.^ [But the tort may be waived and the right of action assigned.'] The amendment, it has been supposed, was intended to restrict this right, and to establish the general princi- ple that nothing but a cause of action growing out of contract ' Wallace v. Ilaton, 5 How. Pr. 99 ; 397 ; People v. Tioga Com. Pleas, 19 report of com. 133, 134. id. 73. 2 3 Sand. Ch. 183. ^ Kellogg v. Ghwrch, 3 Code R. 89, 53, 8 Code, § 111. « Hcmk v. Thorn, 54 Barb. 164. * Qardnee v. Adams, 13 Wend. 66 PARTIES TO TJIE ACTION. [CH. II. could be assigned so as to give tlie assignee such an interest as would enable him to enforce his demand by civil action.' That this construction is incorrect is manifest. The section referred to does not " authorize " the assignment of a thing in action not arising out of contract ; neither does it forbid such assignment. Consequently the right rests upon precisely the same footing as it did before, and an assignee takes precisely the same interest in the assignment of every species of demand, either at law or in equity, as he did before the Code. If, there- fore, the demand was such as was capable of assignment before the Code, so as to carry an equitable interest to the assignee, it is such a demand as will now pass by assignment, so as to give the assignee a right of action thereon. It becomes important, there- fore, in order to ascertain who may be a proper party plaintiff in this class of cases, to consider what demands are assignable. It is admitted, on all hands, that a mere personal tort, such as slander, libel, assault and battery, false imprisonment, and actions on the case for injuries to the person of the plaintiff, or to the person of the testator or intestate of any executor or administra- tor, are not assignable." They die with the person ; no action coidd be maintained upon them by the personal representatives, and an assignment conveys no interest to the assignee which can be asserted in a court of justice. [Those are the. only exceptions made by the statute.'] But torts for the taking and eon- [*112] *version of personal property, or for injury to personal property, and, generally, it seems such a right of action for a tort, as would survive to the personal representatives of the party, may be assigned, so as to pass an interest to the assignee which he can assert in his own name, in a civil* action, under the Code, as he formerly might in the name of the assignor at law. This has been several times held in a variety of well-considered cases in the supreme court.' In Eoyt v. TJwnvpson, in the court of appeals,^ the court says, "all choses in action, embracing demands which are considered as matters of property or estate, ' See Merchants' Mutual Tim. Go. v. * See Robinson r. Weclis, 6 How. Pr. ^aion, per Selden, J.,llLeg. Obs. 140. Ifil : ITodt/mnn v. Western Railroad ' 2 R. S. 447, ^i; 1, 2 : 3 Edm. St. 467. Corporation, 7 How. Pr. 493 ; see, also, 8 Fried v. iV. 't. Cent. R. R., 2r, How. Sail v. Robinson, 3 Comst. 294. 387; Foyv. Troy, etc., 34 Barb. :183 : '1 Seld. 347. Yan Rensselaer v. Owen, 48 id. 06. SEC. II.] OF PARTIES PLAINTIFF. 67 are now assignable, either at law or in equity. ISfothing is excluded bub mere personal torts which die with the party. A claim therefore for property fraudulently or tortiously taken or received, or wrongfully withheld, and even for an injury to either real or personal property, may be assigned." And in Hodgman V. The Western Railroad Corporation^ which contains a very succinct and clear exposition of the law on this subject as it stands under the Code, the language of Judge Stoet, in Comegys v. Vassee^ 1 Pet. 213, is quoted with approbation. " In general, it may be affirmed that mere personal torts, which die with the party, and do not survive to his personal representatives, are not capable of passing by assignment ; and that vested rights ad rem and in re, possibilities coupled with an interest, and claims growing out of, and adhering to, property, may pass by assign- ment." [*113] * Thus, a widow's right of dower, before admeasure- ment, which it has been repeatedly held was not assign- able," can, under these rules, it is presumed, be assigned so as to pass an interest which the. assignee may assert by action under the Code. So, too, rent in arrear which was not assignable at law," may now be assigned, and the assignee maintain a suit upon it in his own name. [So the expectancy of an heir.*] Though prospective demands may be assigned in equity,' yet a mere expectancy, a mere jus precarium, such as an anticipated donation from the government, is not assignable or capable of being sold.' It is a mere possibility not coupled with an interest. [Otherwise as to extra compensation, which may be subsequently allowed a contractor for work already done.'] But a vested interest, in remainder, in personal property, though liable to be defeated by a future event, is assignable.' So, too, a claim against a foreign government for an illegal capture." In the late case of Field v. Mayor, etc., of New Tork,^" the court of appeals ' 7 How. Pr. 493. » Meld v. Mayor, etc. , of New Torh, 2 « 17 Johns. 167 ; 30 id. 411 ; 1 Barb. Seld. 179. S. C. 500. ^ Munsell v. Lems, 4 Hill, 635. ' Demarest v. Willard, 8 Cow. 206. ' Munsell v. Lewis, 2 Den. 224. ^ Stover V. Eydeshimer, 3 Keyes, * Lawrence v. Bayard, 7 Paige, 70. 620, aflarming 46 Barb. 84 ; see Mr. » Gonch v. Delapl'aine, 2 Comst. 397. Hare's note to Am. ed. McClellan & '« 3 Seld. 179. Tounge's Excb. Eep. 101, marg. p.; and 2 Story's Eq. Jur., §§ 1040 to 1040 h. 68 PAETIES TO THE ACTION. [CH. II. held, that an assignment for a valuable consideration of demands, having at the time no actual existence, but resting in expectancy merely, as, for example, all such demands as might become due for printing, in which the assignor was then engaged for the city of^^Tew York, was valid in equity. Though it was not strictly an assignment in presenti of a chose in action, because [*114] it was not yet in existence, but remained * in possibility merely, yet it was a valid agreement, and would take effect as an assignment when the demands intended to be assigned were subsequently brought into existence. An entire demand may be assigned in parts to different per- sons, and the assignee of a portion of the demand will have his right of action to recover such portion.' In such case,' the rule as to parties under the Code will be the same as the former rule in equity, namely, that the assignees of other portions of the demand, and the assignor, if he retained any portion, should be made parties defendants. The several assignees and the assignor, if he retain a portion of the demand, may unite to recover the entire demand. [But the assignment .of a mortgage without one of the bond, carries no right of action ; " otherwise as to a chattel mortgage, for that carries the title to the property, subject to being defeated by payment.*] In all cases, therefore, where a valid demand has been assigned, except mere personal torts which do not survive to the per- sonal representatives, such as slander, libel, assault and bat- tery, false imprisonment, and other injuries to the person,' the action is to be brought, and a recovery had, in the name of the assignee. [The following actions have been held assignable, or, what is equivalent, to survive in favor of and against the representatives of parties : ' An action by an assignee, in trust for creditors, for a wrongful taking of trust property by a sheriff on execution.' ' 2 Seld. 179 ; Hall v. City of Buffalo, " Raymond v. Fitch, 3 Cromp., Mees. 1 Keyes, 199. & Rose. 588 ; Oomegys v. Vassee, 1 Pet. = 8 How. Pr. 415 ; 1 Pars, on Cont. 313 ; ZabrisUe v. Smith, 13 N. Y. 335 ; (5tli ed.) 362 ; 2 id. 620, note b. Butler v. N. Y., etc., 33 Barb. 110. ' Merritt v. BartlioUck, 47 Barb. 353, ■■ Emerson v. Bleakly, 3 Trans. Ap. 36 N. y. 45. 171, 173-176 ; the opinion of Paekbr, •• Campbell v. Burch, 1 Lans. 178. J., is republislied in 3 id. 100. = 3 R. S. 447, SS 1, 3; 3 Edm. St. 467. SEC. II.] OF PARTIES PLAINTIFF. 69 It has been held that an action of replevin, on the death of a sole plaintiff, can be revived ; ' if so, a cause of action in replevin can be assigned, if the defendant therein be not the representative of the wrong-doer. It has been said, also, that, upon the death of a sole defendant, the action cannot be revived," and that in case of the death of a sole defendant, in such action the remedy of the party is to pursue the property or to bring trespass against any one interfering with it.^ If the proposition be sound, if a party who has wrongfully taken property die, the right to t}i& property cannot be transferred so as to enable the assignee to bring replevin against his representatives without a new demand ; * or, if the assignment transfer all the assignor's interest in the property, or for its conversion, the assignee may maintain trover for its con- version." We are unable to see by what system of reasoning it can be claimed that a defendant who wrongfully detains property from a plaintiff' is not prosecuted for a "wrong done to the properi/y, rights or interests of another," and it may be doubted whether the cases which hold that an action of replevin cannot be revived on the death of a sole defendant, are good law. It seems to us the court overlooked the concluding portion of the first section of the Revised Statutes above cited ; and that, as was said by the revisers, quoted by Hasten, Justice, in Fried v. N. Y. Central, etc.' " the exceptions (in § 3 of the R. S. above quoted) " are all that should be made." Suppose, after the defendant in replevin has given the proper undertaking and obtained posses- sion of the propert}' in controversy, and after "injury to or destruction thereof, he should die, ought the plaintiff', by the act of God, to bo deprived of all remedy upon the undertaking ? It is true it has been held that, if the property be injured or de- stroyed by inevitable accident, and without the fault of the party who has taken it in legal proceedings, neither he nor his s^ireties are liable upon the undertaking ; ' but the first case was repu- ' Emeraon v. Booth, 51 Barb. 40, 3 » Burlcle v. Luce, 1 N. Y. 169-171 ; Trans. App. 175 ; Potter v. Van Vran- Tates v. Fassett, 5 Denio, 33. ken, 36 N, Y. 619, 624 ; Lahey r. Brady, * Duell v. Gudlipp, 1 Hilt. 166 ; but 1 Daly, 443. see Waldron v. Willard, 17 N. Y. 466 ; ' Potter V. Van Vranken, 36 N. Y. McMahon v. Allen, 35 id. 403. 634, 629 ; Webher v. JJnderUll, 19 Wend. ^ Duell v. Gudlipp, 1 Hilt. 168. 447 ; Lahey v. Brady, 1 Daly, 443 ; « 35 How. 287. Moseley v. Moseley, 11 Abb. 105, 107 ; ' Carpenter v. Stevens, 12 Wend. 589 ; Hopkins v. Adams, 5 id. 351. Walker v. Osgood, 53 Me. 433. 70 PAKTIEH TO THE ACTION. [CH. II. diated by the superior court ' in a case which was not referred to in the second." If, however, such an action could not be revived on the death of a sole defendant, the right to the property could be sold and a new action brought after demand if one were necessary.' An action against the vendor of land for fraudulent representations as to an incumbrance survives.* So any action for false and fraudulent representations whereby the estate of him to whom they are made is injured.' And an action for negligently setting fire to and burning up grass and fences." The following actions have been held to be assignable or to survive : An interest in personal property or a possibility coupled with an interest in real estate — as a life estate charged with the support of infants ;' a claim against a foreign government for indemnity on account of an illegal capture;' a claim against the government for services subsequently required by the legislature to be paid ;° for an injury occasioned by negligence or a breach of duty ;" for neg- ligence causing death of persons," or animals ;''' against a canal contractor for failure to remove obstructions ;'° for goods lost by a carrier," or by an innkeeper ;'' a sheriiF's right of action against bail ;'° the obligee's interest in a replevin bond ;" a guaranty." A license to use a patented article ;'° an action for money had and received f ° against an agent for converting funds intrusted to him ;" fees earned by an officer, but not those to be earned ;°'' an ' Suydam v. Jenkins, 3 Sandf . 643, '" Dininny v. Fay, 38 Barb. 18. 645. " Quin v. More, 15 N. Y. 483. 2 See, also. Fried v. N. T. C. R. R, '« Butler v. JST. Y., etc., 22 Baxb. 110. 25 How. 286, 388 ; Foy v. Iroy, etc., 24 i^ jTulton, etc., v. Baldwin, 37 N. Y. Barb. 383. 648, and see Bobinson v. Chamherlain, 3 Hall V. Bobinson, 3 N. Y, 393 ; Leicis 34 id. 389. T. Mott, 36 id. 403 ; Jessop v. Miller, 1 ^ Mc£ee v. Judd, 13 N. Y. 638 ; Wal- Keyes, 328 ;DM«?iv.Cwf?H/jp,l Hilt. 166. (?TOft v. Willurd, 17 id. 466; Van * HaigM v. Eayt, 19 N. Y, 464, 474. Bensselaer v. Owen, 48 Barb. 66. '•Johnston v. Bennett, 5 Abb. N. S. ".Stofttoii v. ZctoratZ, 4 E. D. Smith, 88. 331 ; Fried v. N. T. Cent. B. B. Co., 25 '« Clapp v, Sclmtt, 39 Plow. 255. How. 285, 386, disapproving on this " Acker v. Finn, 5 Hill, 293. point, Zabriskie v. Smith, 13 N. Y. 323 ; '^ Small v. Sloan, 1 Bosw. 353. Mackey v. Maekey, 43 Barb. 60 ; see " Wihon. v. Stolly, 5 McLean, 1. Atimll V. Le Boy, 4 Abb. 439. =« Piatt v. Stout, 14 Abb. 178. ^ Fried Y.m 7. Cent. B.B., 35 How. « Gould v. Gould, 36 Barb. 270, 41 385. id. 654, affirmed by default, 41 N. ' Emmons v. Cairns, 3 Barb. 343 ; 3 Y. 619. Barb. Ch. 350. ^''Birbeck v. Stafford, 33 How. 236, 14 " r/w«c7iv. Dete^?aira«, 3N. Y. 397. Abb, 28.); McCoun v. Dorsheimer " Manor V. Metz, 16 Pet. 331. Clarke's Cb. 144. SEC. II. J OF PARTIES PLAINTIFF. 71 agreement to sell and deliver goods j' a claim for services f for breach of au agreement to employ the assignor ;'' the right to recover money lost in betting;* for misapplying fnnds of a cor- poration ;' for the conversion of personal property ;° a claim for town bounty ;' for moneys received by an agent ■' for fraud in obtaining a deed, so as to enable the assignee to set it aside ;' property subject to an usurious lien, so as to confer a right to avoid it for the usury ;'° a contract for the labor of convicts in a State prison." The following are not assignable. The right to the service of an apprentice," for the apprentice is not bound to serve the executor of his master, after his master's death ;'° although, if the apprentice actually labor for the assignee, the law does not imply a promise to pay," and he will gain a settlement under such an assignment." A right of action for the sediiction of a servant is not assignable;'" the real gravamen of the action is not the loss of service, but the mortitication and dis- grace of the family and the wounded feelings of the plaintiff ;" neither is an action for breach of contract to marry ;" nor a claim against a justice of the peace to recover back money paid to him on an illegal and excessive fine imposed by him." The question as to whether a cause of action is, or is not assignable, depends upon the nature of the claim ; and allegations which are not material ^ TyUrY. Barrows, ^B.ob.KA; Sears is contrary to the latter cases. See V. Gonomr, 3 Keyes, 113. Moak's note, Clarke's Ch. 494, niarg. •" Field V. Mayer, 6 N. Y. 179. p. 3 Monahan v. Story, 3 E, D. Smith, " Horner v. Wood, 33 N. Y. 350, 393. 355. ■^McDoagaU v. Waliinff, 48 Barb. " GtiUderland v. Krwx, 5 Cow. 367 , 864 ; Meech v. Stoner, 19 N. Y. 36 ; 1 Pars, on Cont. (Sth ed.) 238, citing 1 Sendrickson v. Beers, 6 Bosw. 639 ; the Mass. 173 ; 8 id. 399 ; 8 N. H. 473 ; 11 case of Weyburn v. White, 33 Barb. 83, B. Monr. 60, and see 1 Pick. 33. is not good law. ^^Pearee v. Ghamberlain, 3 Vesey Sen. * Grocers' Bank s. Clarice, 48 Barb. 35 ; Reeves's Dom. Rel. 345. 36, 33 How. IfiO. » Williams v. Fincli, 3 Barb. 308. ' Richtmyer v. Bemson, 38 N. Y. 306. '' Ouiklerland v. Knox, 5 Cow. 363. ' Garner v. Greque, 46 Barb. 507 ; " Howard v. CroiDther, 8 Mees. & People ex rel. Yates v. Boa7-d of Toicn Welsh. 601 ; George v. Van Horn, 9 Auditors of GanajoJiarie, M. S. Gen. Barb. 533. Term, 4th dist., Schenectady, April 7, " Badgley v. Decker, 44 Barb. 577. 1868. '«Stebbi7is v. Palmer, 1 Pick. 71; * Allen v. Brown, 51 Barb. 86. Smith v. Sherman, 4 Gush. 408 ; 3 Pars. ' McMahon v. All67i, 35 N. Y. 403. on Cont. (5th ed.) 70. '» Bullard v. Bayner, 30 N. Y. 200 ; " Glark v. Holdridge, 40 How. 830 Berdanv. Sedgwick, 40 Barb. 359; the case of Boughton v. Smith, 26 Barb. 635, 72 PAETIES TO THE ACTION. [CH. II. to the cause of action, do not render it assignable or non-assign- able.' As to what actions survive, see further, post (marginal), page 146, et seq. [*115] * The party prosecuting the suit must be the real pa/rty in interest. Thus, vrliere a bank sued upon a draft paya- ble to the order of its cashier, and the complaint alleged that it was delivered to the said cashier "for the said bank," it was held, on demurrer, that the complaint was good, and that the suit was properly instituted in the name of the bank.'' So, in an action on a policy of insurance effected upon the plaintiff's property by his agent, containing a clause that the loss, if any, should be paid to the agent, it was held, that the owner of the property, being the real party in interest, might maintain the action.' [The peo- ple of the State have no right to maintain an action to restrain town commissioners from subscribing for stock of a railroad com- pany and issuing the bonds of the town.*] Under the former equity practice, it was held, by the chancel- lor, that the assignee of a chose in action who is but a nominal owner, could not sue in equity, but the suit must be brought by the real party in interest.' Though Judge Stoet thinks, that this doctrine should receive qualifications in certain cases, as, for example, where the assignee holds a nominal interest as trustee, etc.," yet, with this exception, it is doubtless generally applicable to our present system. The holder of a promissory note is presumed to be the owner and real party in interest within the meaning of the Code. The production of the note and proof of the signature of the maker and indorser is sufficient, without showing value given, even though the note was received after due.' [*116] * In an action on the official bond of a town superintend- ent of common schools, given to the supervisor or his ^ByxUe v. Wood, 34 N. Y. 607; "People v. Olarke, 53 Barlo. 173; Union Bank v. Bush, 36 N. Y. 686 ; People v. Maiinr, 37 How. 34. Brady y. Bissell, 1 Abb. 76 ; French v. ' Bogersy. Traders' Ins. Co., 6 Paige, White, 5 Duer , 354, and see Atwell v. 597 ; Field v. Maghee, 5 id. 539. Leroy, 4 Abb. 438, and Hare & Wal- « Story's Eq. PI., § 153, note, lace's note to Drake v. Beckham, 11 ^ James v. Chalmers, 5 Sand, 53; 6 Mees. & Welsb. 319. N. Y. 309 ; Mottram v. Mills, 1 Sand. 37 : '' Camden Bank v. Badgers, 4 How. Beznor v. Web}), 36 How. 353. Pr. 64. ^ Lane v. Golumtus Ins. Co., 3 Code E. 65. SEC. II. J OF PARTIES PLAINTIFF. 73 successor in office, a subsequent town superintendent of common schools is not tlie real party in interest within the meaning of sec. Ill of the Code, but the action must be brought by the supervisor.' The effect and operation of section 111 of the Code was con- sidered by Justice Sblden in the case of Merchants' Mutual Ins. Co. V. Eaton,^ in which the rule was laid down, that the section was not designed to convert, in cell cases, a mere equitable into a legal title, so as to enable the party holding such claim to assert it by action as in the case at bar ; where an insurance com- pany, which had been compelled to pay for damages for goods insured on a canal boat, brought an action to recover such dama- ges against the owners of another boat committing the injury. It was denied in that case that the section under consideration was designed to apply, in all cases, the rules in relation to parties which formerly obtained in courts of equity. Its principal, if not its whole design, was thought to be to authorize a suit at law in the name of an assignee of a chose in action, and thus to abrogate the rule of the common law which renders such things unassignable. "In order to bring a case within section 111," says the court, " there must be an assignment in fact. An obli- gation to assign, or a state of circumstances which would [*117] operate to transfer the equitable *interest in the thing in action, will not be sufficient. There must be that done which, before the Code, would have passed the legal title, but for the rule which denied the assignability of such an interest." Section 111 further provides that " An action may be main- tained by a grantee of land, in the name of a grantor, or his or her heirs or legal representatives, when the grant or grants are void by reason of the actual possession of a person claiming under a title adverse to that of the grantor at the time of the delivery of the grant, and the plaintiff shall be allowed to prove the facts to bring the case within this provision." [Under this provision an action may be brought by a grantee in the name of his grant- or without his consent ;° and the grantor is liable for the costs of the action if it be unsuccessful."] Except in abrogating the rule of the common law, namely, that 1 Fuller V. FulUrton, 14 Barb. 59. ^ Lowber v. Kelly, 17 Abb. 453, » 11 Leg. Obs. 140. affirmed, 9 Bosw. 494. " HamUton v. Wright, 37 N. T. 503. 10 74 PARTIES TO THE ACTION. [CH. II. courts of common law will not in general notice mere as contradistinguished from the strict legal title and interest, so as to invest the equitable, or merely beneficial, claimant with the ability to adopt legal proceedings in his own name, the Code has not, so far as I have been able to discover, interfered with these established principles and rules relative to parties plaintiff, which heretofore applied to common-law actions. Indeed, with this exception, I do not see any essential difference in principle between the rules which heretofore governed a legal and an equitable action, so far as related to the party who should prop- erly prosecute the suit. The henefioial claimant, or, in the lan- guage of the Code, the " real party in interest " was the proper party plaintiff. Thus, an action against a carrier for the loss of goods sent by a vendor to a vendee, must in general -be brought in the name of the latter, and not of the consignor ; because the law implies, that, by the delivery to the carrier, the goods become the property of the vendee, and at his risk.' [But a consignor who makes a special contract with the carrier may recover thereon.^] So, too, as in the case under the Code just cited oi Lane v. Golumhus Ins. Co.' a mere servant or agent, with whom a contract is expressed to be made on behalf of another, and who has no direct beue- [*118] ficial interest in, the transaction, cannot *support an action thereon.* But when such agent has any henefioial interest in the performance of the contract, as for commission, etc., or a special property or interest in the subject-matter of the agree- ment, as in case of a factor or broker, or a warehouseman or car- rier, he may support an action in his own name.* The rule as to all manner of torts, as for injuries to the person, or to personal or real property, was the same. The beneficial claimant, that is, the party who had sustained the injury, and who was entitled to the damages recovered, was the proper party to prosecute the suit. And so also in regai-d to actions to recover real or personal prop- erty, the beneficial claimant in the subject-matter of the contro- > 1 Cliit. PI. 6 ; EruUer v. ElUson, * 1 T. R. 112 ; 3 Esp. 493 ; 11 East. 47 N, Y. 36 ; 3 Saunders' Notes, ed. 180 ; 1 Chit. PI. 7, 8 ; Kellogg v. Swet 1871, p. 119. iicy, 1 Lans. 397; Eldrkige v. Adams 8 27 Wise. 81. 54 Barb. 417; Fitzhugh v. Wim.ai, 9 3 2 Code R. 65. N. Y. 559. •16 Johns. 94; 10 id. 887; 6 Mass. 491; 10 id. 8G3; Bosbm. U. S., etc., 3i How. 308. SEC. II. j OF PAETIES PLAINTIFF. 75 versy, namely the possession of the land, or chattels, was the proper party. The party having the right to the immediate pon- session was the real party in interest, and was entitled, then as now, to adopt legal proceedings to enforce such right. In the case of replevin, or an action to recover personal property, or trover and the like, this" right did not attach unless the plaintiff, at the time of the injury, had either a general or special property in the goods taken.' Thus a deposit by a person who himself had no property in the goods did not give the depositary a right to replevy them, nor could a mere servant who has charge of goods, as such, maintain replevin. There must be some special property, some beneficial interest therein, otherwise the general [*119] *owner alone could sue for, or recover the property.'' [The purchaser of a note, who is not to pay for it until col- lection, is the real party in interest." It is not necessary the assignee should pay any thing for the assignment." If the assignment is valid as between assignor and assignee, so that the former is divested of all control and right to the cause of action, and the latter is entitled to control it and receive its fi-uits, the assignee is the real party in interest ;' and, if in writing, it is doubtful whether parol evidence is admissible to contradict it ;° it is good, although the assignor have no right to sue upon the cause of action in this State.' Either the general owner or a bailee may sue a stranger for injury to, or conversion of, the subject of the bailment •' and ordinarily the bailee, as against a stranger, may recover the full value of the property ;° otherwise where a pledgee sues the owner, or one claiming under him, for the injury to his special property.'" ' 1 Chit. PI. 187. Brotm v. Penfield, 36 id. 475 ; aty ' Harrison v. Mcintosh, 1 Johns. 380 ; Bank v. Perkins, 39 id. 554 ; Williams Harris v. Smith, 1 Serg. & Eawle, 20; v. Brown, 3 Keyes, 488. 1 Chit. PI. 170, 187. 6 Peterson v. Ohemiaal Bank, 33 N, V. Morris, 3 Bosw. 560, Y. 47, 51. 35 N. Y. 635 ; sul)stantially overruling ' 3IcBride v. Fwrniers' Bank, 26 N, Killmore v. Culver, 34 Barb. 656 ; and Y. 450 ; Peterson v. Chemical Bank, 33 see Allenv. Brown, 51 id. 86 ; Terby v. id. 47, 51. Kirkpatrick, 3 Rob. 229. The word » Greene v. Clark, 13 N. Y. 843 ; " not " should be inserted in the second Bowen v. Fenner, 40 Barb. 353 ; Bass head-note, between " had " and " such," v. Pierce, 16 id. 595; Paddock v. in the first line. Wing, 16 How. 547 ; Kellogg v. Sweeny, ^ Richardson v. Mead, 37 Barb. 178 ; 1 Lans. 397. Kelly -V. Campbell, 1 Keyes, 39; Merrick " Buck v. Remsen, 34 N. Y. 383 ; but V. Braina/i-d, 38 Barb. 575; Vogil v. Badr- see Eldridge v. Adams, 54 Barb. 417. cock, 1 Abb. 176 ; Burtnett v. Owynne, '" Sedg. on Dam. (4th ed.) 563 ; Chad- 3 id. 79 ; Allen v. Brovm., 51 Barb. 86. vyick v. Lamb, 39 Barb. 518 ; Story on ' Cummings v. Morris, 25 N. Y. 637 ; Bailment (7th ed.), § 353. 76 PARTIES TO THE ACTION. [CH. II. It would be proper for a defendant, when the action is by a bailee or by the general owner, where a bailee has an interest, to insist, by answer or otherwise, upon both being brought in as parties. If the general owner of property pledged sue a wrong-doer, he is entitled to recover its full value, without reference to the pledge, for he is liable to the pledgee for the debt and can have but one action for the tort.' Although his recovery would not probably bar a recovery by the pledgee, for the injury to his special prop- erty, else a recovery by a worthless owner would destroy it." The defendant, after judgment, can protect himself from a double payment by a motion to stay collection of so much of it as is represented by the special property of the pledgee. The court has a right to so control its judgments as to prevent injustice being done thereby.' If one give a note to A, for the benefit of B, A is a trustee of an express trust.'] These rules seem to me to be fully applicable to the system of pleading adopted by the Code. The 'beneficial claimant is the " real party in interest " within the meaning of the Code. And in all cases under the old common-law system of pleading, where the right of the pai'ty to sue was made to rest upon the fact of his having such beneficial interest, the well-settled rules govern- ing parties plaintiff, apply to the Code.' A further examination of these rules would lead me beyond the limits marked out for this work. They may be conveniently consulted by the student in the various standard works on common-law pleading." As to the joinder of plaintiffs. The rules adopted by the Code in regard to the joinder of parties to the action^ are gener- ally those which heretofore prevailed in courts of equity. The general rule in equity is stated by Lord Hardwicke to be that "all persons ought to be made parties before the court, who are ' Oreen v. Clark, 12 N. Y. 343, proper parties, consult Story's Eq. PI. 853 ; Story on Bailments (7th ed.), § 353. • g 136, et seg. ; Dan. Ch. Pr. ;' Barb. Ch. * Hasbrouch v. Lounsbury, 36 N. Y. Pr. ; IBarb. on Parties ; Kerr on Frauds 598; Story on Bailments (7th ed.), § (Eng. ed.) 803-315 ; Kerr on Inj. (Eng. 2 26 How. 394; 45 Barb. 120; 1 ed.) 307, 308 ; Estee's PI. ani3 Forms; 353. Add. on Torts ; Adams's Eq. ; Story's Keyes, 65; 38 N. Y. 70; 2 Am. Law Eq. ; Burr. Pr.; Gra. Pr.; Rob. Pr.; Till. Times, U. S. Courts Rep. 188. & Shear. Pr. ; N. Y. Pr. ; Voor. Anno. " Beznor v. Webh, 36 How. 353. Code, and works upon the particular = Hutchins v. Smith, 46 Barb. 335. subject desired.] ['As to who are necessa/ry and who are SEC. II.] OF PAETIES PLAINTIFF. 77 necessary to make the determination complete." Lord Eldon lays down the rule, " that all persons materially interested in the subject of the suit, however numerous, ought to be parties, that there may be a complete decree between all parties having material interests." Sir William Geant says : " In equity it is sufficient that all parties interested in the subject of the suit should be before the court, either in the shape of plain- [*120] tiffs or defendants." *Judge Stoey, while intimating a better exposition of the general rule to be, " that all per- sons interested in the object of the suit ought to be made parties," very properly remarks, that the rule does not seem to be founded on any positive and uniform principles; and therefore it does not admit of being expounded by the application of any universal theorem as a test.^ Without pursuing these definitions further, I shall proceed to a consideration of the provisions in the Code relative to parties, which seem to be founded on these general definitions, and cer- tain other well-recognized principles of equity pleading, which will be hereafter noticed, merely premising that the Code appar- ently has undertaken to do what Judge Stoet intimates the former equity system did not do, namely, establish certain general rules, to be applied, in all cases, as an universal theorem or test. These rules are as follows : " All persons having an interest in the subject of the action, and in obtaining the relief demanded, may be joined as plaintiffs, except as otherwise provided in this title." ^ And again : " Of the parties to the action, those who are united in interest must be joined as plaintiffs or defendants; but if the consent of any one who should have been joined as plaintiff cannot be obtained, he may be^ made a defendant, the reason thereof being stated in the complaint; and when the question is one of a common or general interest of many persons, or when the parties are very [*] 31] numerous, and it may be impracticable to bring * them all before the court, one or more may sue or defend for the benefit of the whole." ' And again : "The court may determine any controversy between the parties before it, when it can be done without prejudice to the rights of ' Story's Eq. PI., § 76 and notes. « Code, S 119. « Code, g 117. 78 PARTIES TO THE ACTION. [OH. IX. others, or by saying their rights ; but, when a complete determina- tion of the controversy cannot be had without the presence of other parties, the court must cause them to be brought in. And when, in an action for the recovery of real or personal property, a person, not a party to the action, but having an interest in the subject thereof, makes application to the court to be made a party, it may order him to be brought in by the proper amendment." ' It vs^as said by Justice Mason, in the case of Wallace v. Eaton, and others,'' that the section last above quoted "was the controlling section in determining whether a demurrer for want of proper parties would lie. " If the court," he says, " can determine the controversy before it without prejudice to the rights of others, or by saving their rights, then a demurrer for non-joinder of such parties is not well taken. If, on the contrary, a complete deter- mination of the controversies cannot be had without the presence of other parties, then the demurrer is well taken, and the court should order them to be brought in by amendments of the plead- ings.'" The same justice quotes from the remarks of the commis- sioners on this subject, as indicating a rule of construction of these sections, as follows : " We have intended to leave suitors very much at liberty to choose whom to make defendants, and whom to join as plaintiffs. No person can be affected by a judgment but a party, or one who claims under him. This rule will make the plaintiff bring in all the parties whom he [*122] wishes to affect. The judgment, *as we have seen by section 161 (now section 274), can be given for or against any one or more of the plaintiffs or defendants." It must be evident, however, that so loose a rule of construc- tion as seems to be indicated by these remarks, cannot be correctly or safely applied as a general rule, at least in regard to the joinder of Y^rti&s plaintiff . If, indeed, this explanation of the commis- sioners is entitled to any weight in the construction of the statute, it should be taken in connection with what was said by them, to be one of the three main purposes in view, namely : " To require the presence of such parties as are necessary to make cm, end of the cont/roversy ;" * in other words, that the necessary parties, at all events, must be before the court, and, by allowing a demurrer for a defect of parties, this view of the subject is coniirmed. ' Code, § 122. 8 See post, ch. vii, ^ 2. 2 5 How. Pr. 99. * Rep. of Com. 121. SEC. II. J OF PARTIES PLAINTIFIT. 79 The rules prescribed and recognized by the supreme court of the United States for the practice in equity cases are similar in many respects to these provisions of the Code. It is hold in that court that as a general rule all persons in interest must be made parties before a decree, but no one need be made a party against whom, if brought to a hearing, there can be no decree.' No one need be made a party complainant in whom there exists no interest, and no one a party defendant from whom nothing is demanded." All persons materially interested in the matter of a bill, [*123] as plaintiffs or defendants, ought to * be made parties to it, however numerous they may be ; but there are excep- tions to the rule,' and it should be restricted to parties whose interests are in the issue, and to be affected by the decree.* If the parties are very numerous, and it is difficult to bring them all in, or the question is of a general interest, and few may sue for the whole, then the plea of want of proper parties will not be sustained, but the other parties may afterward come in and have a rehearing.' This doctrine, upon which is based one of the pro- visions of the Code above mentioned, is very fully discussed in WestY. Randall et al.," and a variety of cases cited in illustration ; as, for example, legatees seeking relief and an account against executors, may sue in belialf of themselves and all other interested persons, when placed in the same predicament as creditors. So in the common case of creditors suing on behalf of the rest, and seeking an account of the estate of their deceased debtor to obtain payment of their demands. So also of another class of cases, where a few members of a voluntary society, or an unincorpo- rated body of proprietors, have been permitted to sue in behalf of the whole, seeking relief and an account against their own agents and committees. So, also, in suits brought by part of a privateer's crew for prize money ; if the suit be in behalf of themselves only it will not be sustained ; ' but it must be in behalf of themselves and the rest of the crew. [*124] *The rule of the Code, in regard to taking objections for ' Sum. 173 ; 9 Wheat. 733 ; 1 Gal. 871. ^ Id. ; MandemlU v. Riggs, 3 Pet. 482 ; « 6 Wheat. 550 ; 1 Pet. 299 ; 1 Wash, also rules 47 and 48. 517. 6 2 Mason, 187. ' West V. Randall et al., 3 Mason, 187. " Mechanics' Bank of Alexandria v. Seton, 1 Pet. 299, 308. 80 PARTIES TO THE ACTION. [OH. II. the want of parties, is precisely the same as the equity rule of pleadings in the federal courts. The latter is stated by Mr. Jus- tice "Wayne in the opinion of the court, in Story v. Livingston^ thus: " Where a complainant omits to bring before the court persons who are necessary parties, but the objection does not appear on the face of the bill, the proper mode to take advantage of it is by plea or answer. If the objection appears on the face of the bill, the defendant may demur. The objection of a misjoinder of complainants should be taken either by demurrer, or in the answer of the defendants ; it is too late to urge a formal objection of this kind for the first time at the hearing." The foregoing are general and well-settled rules of equity pleading and there can be little doubt that they are in the main applicable under the Code. Most of them have been repeatedly recognized and acted upon by the courts of this State.'' Thus, it is laid down as the most general principle in relation to parties to suits in equity, that every person who is at all interested in the suhjeGt-matter of the suit, or necessary to the relief, must be a party, in order to enable the court to settle the rights of all, and make a complete and definite decree upon the merits. ' [*125] Persons are necessary parties when no decree can be *made respecting the subject-matter of litigation until they are before the court either as complainants or defendants, or where the defendants already before the court have such an interest in having them made parties as to authorize those defendants to object to proceeding without such parties.* All persons, having a joint and common interest in the claim set up in the complaint, are necessary parties. Thus, where a bill was filed by one of two joint makers of a note to set aside a judgment confessed on the note, which it was alleged was usurious, it was held, by the chan- cellor, that the other maker was a necessary party, and should have been joined as complainant, unless a sufiScient excuse was alleged in the bill for omitting to make him complainant, in ' 13 Pet. 375. ' Same cases ; also, Houghton v. AX ' Trustees of Watertown v. Oowen, 4 ten, 11 Paige, 331 ; Christie v. Merrick Paige, 510 ; Bailey v. Inglee and others, 1 Barb. Ch. 354. 2 id, 378 ; Whelan v. Whelan, 3 Cow. ■■ Bailey v. Inglee and others, 3 Paige, 638 ; Qolt V. Lasnier, 9 id. 331 ; Fellows 378. V. Fellows, 4 id. 683. SEC. II.] OF PAETIES PLAINTIFF. 81 which case he should have been defendant.' This is precisely the principle adopted by the Code. All persons who are entitled to litigate the same questions are necessary parties to a suit to deter- mine them. All persons who are entitled to any share of a fund are necessary parties to a bill for an account and distribution of it. Thus, where a bill is filed by a judgment creditor to carry into effect an assignment of the debtor's property, the other cred- itors provided for in the assignment should be made parties, or the bill should be filed in behalf of the complainant and all others who may choose to come in under the decree." But it is other- wise, if the judgment creditor is seeking to set aside, or is acting in hostility to, the assignment.' [There the assignor and assignee are the only necessary parties,"] and the same principle [*126] has been * approved in a case arising since the Code.° And so, too, in regard to the provisions of the Code that when the question is one of a common or general interest of many persons, or the parties are very numerous, one or more may prosecute for the benefit of the rest, it is but adopting, in terms, a rule of equity which our own courts always recognized. The subject is discussed in the case of JBouhton v. The City of BrooMyn' and the reasons and grounds of the principle very clearly enunciated by Justice Beowit in the opinion of the court; but it was thought in that case not to extend to a suit in which one of many separate owners of property, prose- cuted in his own behalf, as well as in behalf of all other owners, to avoid an assessment made by a municipal corpo- ration on such separate lots. The action must be brought to assert a common rights or to protect a common interest, otherwise the principle does not apply. A similar doctrine was asserted in McEensie v. VAmoureaux^ in which it was held, that an action might be brought now, as before the ^Houghton v. Allen, 11 Paige, 323. « 15 Barb. S. C. 375. ''Brooks Y. Peck, 38 Barb. 519; '11 Barb. S. C. 516; Totcner v. Bank, etc., v. Suydam, 6 How. 379. Tooley, 38 id. 598. [Many cases where ' Wakeman v. Gh-owr et al., 4 Paige, one may sue in bebalf of himself and 23; Bank, etc., v. Suydam, 6 How. others similarly interested will be 379. found in the note to Fenn v. Graig, 3 ^LaiDrencey.TheBank,%l'H.ow.5%; Young & Collier, Exch. Eq. 224; see 35 N. Y. 320 ; Bea/rdsley, etc., v. Foster, post, p. 673, et seq 1 36 id. 566. ^ Bank of British North America v. Suydam et al., 6 How. 379. 11 82 PABTIES TO THE ACTION. [CH. II. Code, by one of several legatees in behalf of himself and others, for an account of the personal estates, etc., and to have the real estate sold, and the proceeds applied in the payment of the debts and legacies. In this case it was held, reversing the doc- trine of the court below, that when the question involved was one of corrmion or general interest, the action might be brought by one or more for the benefit of themselves and others who [*127] have such common or general interest *without showing that the parties are very numerous, or that it would be impracticable to bring them all before the court. Accordingly though there were but three persons whose interests were identi- cal with the plaintiffs, and who were not joined, it was decided that the action was well brought. In such cases, however, it is essential that the parties have such common or general interest y but where they are very numerous, and it is impracticable to bring them all before the court, and action may be so brought, it was said, when the parties are " united in interest," whether they have such " common interest " or not. A distinction was taken in this case, it will be observed, between parties united in inter- est, and those who have a common or general interest in the question." But in Hahicht v. Pevfiberto^i^ in the ^STew York superior court, it was held, that a member of an unincorporated association cannot maintain, in his name for the benefit of the association, an action on a note given to or held by the associa- tion, without showing by his complaint the articles or other instru- ment which gave him such right or authority. The mere fact that the society is not incorporated, and its members numerous, will not warrant such a suit. " To enable the plaintiff to bring a suit in his own right, and on behalf of others having a common interest," says the court, " it is not sufiicient to allege that the other parties are so numerous that it would be impracticable to bring them all before the court, but the nature of their com- [*128] mon interest must appear to be such as would ^entitle them, were they all before the court, to maintain the action in their own right, or in their own names. " [The complaint in such case must distinctly aver that the parties are so numerous that it would be impracticable to bring them all in, or, if brought > Brooks V. Ptck, 38 Barb. 519. » 4 Sand. 657. SEC. II.] OF PARTIES PLAINTIFF. 83 in, to prevent the suit being continually abated by deatb or change of interest.' The right of action must be common to, or against, all. If there be several kinds of bonds issued by a rail- road company, or they be received for different considerations and under various circumstances, one defendant cannot be prosecuted as representing all the holders.' The rule is thus laid down by Lord Cottenham,' reiterated by him* and approved by Vice-Chancellor Kendeesley.' " Where the grievance complained of is common to a body of persons too numerous to be all made parties, the court has permitted one or more of them to sue on behalf of all, subject, however, to this restriction, that the relief which is prayed must be one in which the parties, which the plaintiff proposes to represent, h^ve all of them an interest identical with his own, for if what is asked may by possibility be injurious to any of them, those parties must be made defendants, because each and every of them may have a case to make adverse to the interests of the party suing.' If, indeed, they are so numerous that it is impossible to make them all defendants, that is a state of things for which no remedy has yet been provided. In Richardson v. LarpenV 2Xi^ Evans v. Stokes,' the diiEculty occurred but the objection prevailed. Many cases may occur in which this difficulty must lead to a failure of justice, and it is much to be wished that some remedy could be suggested for it." ] It will be seen, therefore, that the sections of the Code under consideration are but re-enactments substantially of the old equity rules relative to parties, and extending these rules to actions at law. The words in section 117, "All persons having an interest in the subject of the action, and in obtaining the relief demanded, may join as plaintiffs," etc., it is said will be construed must join. Such, it seems, was the old chancery rule," which absolutely required all persons having a joint interest in the subject-matter, ' See Dunlap's note to Baldwin v. ^ Fawcett v. Laurie, 1 Drew. & Smale, Lawrence, 2 Sim. & Stu. 36 (Banks's 303. ed.) ; 3 Paige, 517 ; 1 id. 30; 3 Jolins. Ch. « Taylor v. Salmon, 4 Myl. & Cr. 134 ; 553 ; 1 Myl. & Cr. 511 ; 3 id. 73. Wallworth v. SoU, 4 id. 619. => Seid Y. The Evergreens, 31 How. ' 3 You. & Coll. Ch. 507. 818. « 1 Keen, 34. ' Moseley v. Alston, 1 PHll. 798. ' See cases above cited. * Carlisle v. Southeastern Railway, 1 Mac. & Gor. 699. 84 PARTIES TO THE ACTION. [CH. II. and in obtaining the relief sought, to join.' And where several persons had a common interest arising out of the same transac- tion, though their interest was not joint, they m,ight join as com- plainants in one suit.° As, if the waters of a stream were diverted to the common injury of the mills below, the owners of the mills, though their titles were several, might properly unite in one bill for an injunction.' Though persons having adverse or conflicting interests in the subject of litigation, should not join as complainants.* When it is said, therefore, that the word " may " in the statute will be construed '•' must," it is presumed nothing more is meant than the application of the old equity rule of pleading, namely, that all persons having a joint as well as 'common interest in " the subject of the action, and in [*129] obtaining the relief demanded," are necessary parties, *and must join as plaintiffs, except as otherwise provided in title three of the Code. Persons having a com,mon, though not a. joint, interest, axe projier parties, and may join ; but, where the interests in the subject of the litigation are adverse or conflicting, they cannot join as plaintiffs." [The hostile interest does not occur when the legal rights of the parties are the same, and the only question is as to the expediency of having those rights enforced at a particular time, unless, as to some it is expedient that their rights should be enforced at a different time from the others ; a mere difference of opinion as to the best time for enforcing the rights of different plaintiffs does not constitute a hostility of interest."] Section 119, above quoted, seems to confirm this view, by enact- ing that " those who are united in interest must be joined as plaintiffs;" that is, are necessary parties, except in the case men- tioned in the same section, where any of them will not consent, in which case they may be made defendants ; or, as the rule was established in equity, they must (unless under special circum- stances) be made defendants.' [When one who should be made plaintiff is made defendant, for the reason that he is acting in hostility to plaintiff's rights, and his answer shows that fact, the ' See, also, 9 Paige, 627. « Brooks v. Peck, 38 Barb. 519. 2 3 Paige, 322. '' Boughton v. Allen, 11 Paige, 821 ; 3 3 Paige, 577. Hallett v. ffallett, 2 id. 15. < 9 Paige, 355,3 Barb. Ch, 897. » FulUam v. McCmthy, 1 H. L. Cas. 708. SEC. II. J OF PARTIES PLAINTIFF. 85 omission of an averment in the complaint, of tlie reason wiiy lie is not made defendant is cured." If the complaint allege facts showing he is so acting, it is not necessary to allege that he refuses to join as a co-plaintiff."] The distinction between parties who are " united in interest" and those who have " a common or general interest" within the meaning of the Code, is very clearly taken in the case of McKen- zie V. L^Amoureaux, heretofore cited." I understand by that case the rule to be as above stated, that parties united in interest must join as plaintiffs, except in the one case specified, where they are very numerous, and it is impracticable to bring them all before the court. Where there is this " common or general interest," they may join, and this leaves the rule precisely as it was before in equity. The rule that parties united in interest must unite as plaintiffs could not be dispensed with, except under peculiar circumstances, and the court would not proceed to a decree where the rights of persons not before the court [*130] were so inseparably *connected with the claims of parties litigant that no decree could be made without impairing the rights of the former.* In the recent case of Conro v. Port Hewi^ Iron Co.,'' the question as to who are proper and who necessary parties is discussed in its application to a creditor's suit. A common interest in the fund, it was held, afforded a good ground to join parties plaintiff; and, therefore, within the former equity rule, that different creditors might unite in such suit. They were p>roper, though not necessary parties, because the action could be sustained by a single judgment creditor." The rule, however, that persons having a common though not a. joint interest, or, as it is more broadly expressed in the Code, " all persons homing an interest in the subject of the action, and obtaining the relief sought," are proper parties, and may join, is not to be understood literally as allowing in all cases two or more persons, having separate causes of action against the same defend- ant, though arising out of the same transaction, to unite and ^Bate V. Graham, 11 N. Y. 343; ^ HoMett v. Hallett and others, 3 Geere v. BibUe, 17 How. 31, 34. Paige, 15. •^Bate V. Graham, 11 N. Y. 343; » 13 Barb. S. C.38. Oeere v. Dibble, 17 How. 31, 34; see = See, also. 1 Paige, 367; id. 20; 4 post, marg. pp. 134, 153, 159. Johns. Cli. 687. 86 PAETIKS TO THE ACTIO^T. [CH. II, pursi;e their remedies in one action.' It has been well said, that there is a class of cases where it is not proper, under the Code, to join persons as plaintiffs who may have a common interest in the subject-matter of the suit. In actions that were formerly deno,minated ex delicto, for injuries to the person, as slander, battery, or false imprisonment, several j^ersons cannot sue [*131] * jointly. Each must bring a separate action, except in cases of slander, of title, and of words spoken of partners in respect to their trade.'' Hence, though the battery or false imprisonment be of two or more persons at the same time, they must bring separate actions. They are not " united in interest," though the cause of action arose at the same time and grew out oi the same trespass.' The " common interest," it would seem, which would authorize parties, who might maintain separate actions, to join in bringing a single action, must be a common interest in obtaining exactly the same measure and kind of relief There must be one distinct general right, a community of interest, not merely in the subject-matter involved, but also in the relief demanded. Thus, a slander uttered of two persons jointly, cannot enable them jointly to sue, because each demands his separate damages, and the measure of damages might not be the same. There would have to be in effect two verdicts and two judgments in the same suit. It has been laid down,* as a general principle in equity, subject, however, to many exceptions, that several persons, having distinct and independent claims to relief against a defendant, cannot join in a suit for the separate relief of each, nor can a single complain- ant, having distinct and independent claims to relief against two or more persons severally, join them as defendants. In that case it was held, that a prayer by several complainants, for [*132] * a perpetual injunction to restrain a nuisance, might be made, but not for an account, etc., of damages severally sustained by them ; so that persons owning separate tenements, affected by the same nuisance, might join as complainants.' ' As to plaintiffs in an action of * Murray v. Hay, 1 Barb. Ch. 59, ejectment, see 2 R. S. 304, §11,3 Edm. Brady v. ]Veehs, 3 Barb. 157. St. 313. ' Pech V. Elder, 3 Sandl. 126, and ^ 1 Chit. PI. 74. cases there cited ; [Brady v. Weeks, 3 ' 1 Monell Pr. 74. Barb. 157]. SEC. II. J OF PAETIES PLAINTIFF. 87 Upon the same principle is the case cited above, wliere separate mill-owners were held to be properly united in a bill for aa in- junction, for diverting the stream to the common injury of all.' And the rule seems to be that while several complainants cannot demand, by one bill, several matters of relief perfectly distinct and unconnected, nor enforce joint and separate demands against the same defendant, yet, where one general right is claimed by the bill, the objection of improper parties cannot be maintained." This proposition is very clearly established in the case of Fel- lows V. Fellows^ and the rule, as laid down by Chief Earon McDonald, is quoted with approbation, " that unconnected parties may be joined in a suit where there is one common interest among them all, centering in the point in issue in the cause." There must be a common right, not in one particular item or part of the claim, but in the entire subject-matter, or, as it is expressed above, " in the point in issue in the cause." Thus, if an estate is sold in different parcels, to difl'erent purchasers, the vendor cannot unite them all in one bill for a specific [*133] performance, * nor can they unite in one suit against the vendor, for each contract is separate and independent, and each case must depend upon its own peculiar circumstances. Upon the same principle is the case of Bouton v. City of Brooh- ^2/?i, 'which has been heretofore alluded to, in which it is intimated that the owners of separate lots assessed by a, municipal corpora- tion would not be properly joined as parties to a suit to avoid such assessment. The plaintiff in that case sued in behalf of himself and others, interested in the property, and the court held the action to be the plaintiff's alone. It was neither brought " to assert a comm.on right, nor to procure an account and distribution of a common fimd, nor to restrain the commission of an act injurious to property or rights in which he, and those in whose behalf he sues, have a common interest,^'' and therefore it was not an action which could be properly brought in behalf of the plain- tiff and others. Several persons cannot join their several rights in an action to recover specific, real or personal property." Two persons avow- ' Hopk. 416, 3 Paige, 577. « 15 Barb. :^75. 2 Halst. Ev. 168, 20 Pick. 338. ^ 3 Saund. PI. and Ev., part 3 (Stli 2 4 Cow. 683. Am. ed.) 769. 88 PARTIES TO THE ACTION". [CH. II. ing that the title is in the one or the other, and each contending that it is in himself, cannot join,' nor can a person join with him as co-plaintiff another who has no interest in the relief demanded.' The provision in the Code, that, if the consent of a necessary- party as plaintiff cannot be obtained, he must be made defendant, the reason being stated in the complaint, is also but a [*134] re-enactment of a well-established *rule in equity,' and is designed to conform the practice under the Code to the former equity system in this respect. The provision in section 122 is also designed to conform the practice of making parties more closely to the equity system, and it is precisely the equity rule, namely, that " the court may deter- mine any controversy between the parties before it, when it can be done without prejudice to the rights of others, or by saving their rights ; but, when a complete determination of the contro- versy cannot be had without the presence of other parties, the court must cause them to be brought in." [It is the right of a party to an action to insist that all necessary parties be brought into court,'' even though non-residents ; ' and proceedings will be stayed until such party is brought in.' Ordinarily, the complaint will be dismissed unless the plaintiif bring in necessary parties within such time as the court designates.' "Where it appears that a complete determination of the controversy cannot be had without the presence of other parties, the Code makes it the impey^ative duty of the court to cause the proper parties to be brought in ; and if a party proceed, after objection by answer, he will be made to pay subsequent costs, or his suit will be dismissed with costs.' An action will not lie by an employee against two stockholders ' 1 Turn. 107. Bolt v. Ha/rdcastle, 3 Y, & Coll. Exch. « 2 Russ. 343, [Pulham-v. McCarthy, Eq. 236. 1 H. L, Cas. 703].' ^ Sharer v. Brainard, 39 Barb. 25; * 11 Pai^e, 331 ; ante, p. 139, marg. Valentine v. Wetherill, 31 id. 055 ; Law- p. ; Code, § 111. rcvre v. The Sank, 31 How. 506 ; Mills ■• Wooater v. Ohamherlain, 38 Barb. v. Pearson, 2 Hilt. 16 ; Craig v. Ward, 603; Strong v. Wheaton, 38 id, 616; 2 Trans. App, 281 ; Daris v. Mayor, 2 Shaver v. Brainard, 29 id. 2^ ; Valen- Duer, 663; Baily v. Bennett, 3 T. & tineY. Wetherill, 31 id. 655; Mills v. Coll. Exch. Eq. 459. As to tlie remedy Pearson, 3 Hilt. 16. wbere the plaintiff does not bring in ' Sturtevant v. Brewer, 17 How. 571 ; proper parties, see cases last cited, and 9 Abb. 414, affirmed, 4 Bosw. 638 ; Sor- Dunlap's note to Hill v. Kirioan, ton V. Payne, 37 How. 374. Jacob's Cli. 165 (Banks's ed.). ' Horton v. Payne, 37 How. 374. ' Tan Epps v. Van Beusen , 4 Paige, ' Tarroway v. Sand, 3 Dick. 498; 75. SEC. II.J OF PARTIES PLAINTIFF. 89 of a corporation ; all the stockholders are necessary parties.' If defendant have once insisted a party is not a necessary one, and the name be stricken out, he is estopped from afterward insisting upon the contrary."] An objection for want of proper parties, taken at the hearing, it was said, ought not to prevail, except in very strong cases, and where the court perceives that a necessary and indispensable party is wanting.' Where an objection is, made for want of parties, the court gives leave to amend and make proper parties,* unless where the objection has been taken by the defendant, in his answer, and the complainant neglects to make the proper parties until the hearing. In such case the court will dismiss the bill, or, in its discretion, order the proper parties to be brought in.' The policy indicated by the Code," is to allow an amend- ment in all cases, by ordering the proper parties to be brought in at the hearing on such terms as may be prescribed.' An amendment, however, by adding or striking out the [*135] *names of parties, it is said, cannot be made without leave of the court.' Therefore it appears, that on a demurrer for want of parties, or an answer setting up such an objection, if the plaintiff has not succeeded in making such parties as will enable the court to determine the controversy, without prejudice to the rights of others, or by saving their rights," he must either dismiss his complaint and commence anew, or apply on motion to the court for leave to amend by adding the proper parties. [If the action is brought to trial upon the answers of some of the defendants only, and the other defendants who are necessary parties have not been served with process or appeared in the action, the court will not permit the trial to proceed.'"] Married women. It was a general rule, under the old system at law, that, whatever claim or demand the husband might dis- charge alone, and of which he might make disposition to his own ' Strmg Y.Wheaton, 38 Barb. 616. « §§ 123, 173. ' Oarrington v. Crooicer, 37 N. Y. 336. ' Per Willahd, Justice, Vander ' 1 Pet. (U. S.) 399, 306. m-rker v. Vander loerker, 7 Barb. 231. • 4 Wasb. 302 ; 3 McLean, 104 ; [7 » Bussell v. Spear, 5 How. 143, id. 99, Bob. 506, 510.] [See McQa/rry v. Board, ' 5 How. Pr. 99. etc., 7 Eob. 464.] ['"Powell v. Much, 5 Duer, 666 ; Good 5 4 Paige, 75 ; 7 Barb. S. C. 331 ; 1 year v. Brooks, 4 Eob. 682, 688.] Pet. 138, 139. 12 90 PARTIES TO THE ACTION. [CH. II. use, the husband alone might sue to recover. Thus, for personal property owned by the wife before marriage, rent accruing dur- ing marriage, and the like, the husband might sue alone, without joining the wife. The rule, under the act for the protection of the property of married women, is now changed. The real and personal property of the wife, including of course her choses in action, are now her separate property, and she should sue for them alone. So, in respect to injuries to her personal property committed before marriage, in which it was formerly held, [*136] that husband and wife *must join ;' she must now, it seems, sue alone. The subject in regard to the capacity of a married woman to sue alone, and when and in what manner her husband must join with her in the action, has been already so fully considered in the previous section that it cannot be necessary to pursue it further in this place. Covimittees of lunatics and persons suing in a representative capacity. The Code has also very nearly adopted the equity rule as to parties in cases of trusteeship. Section 111, that every action must be prosecuted in the name of the real party in inter- est, is made subject to the provisions of section 113, constituting the exceptions to the general rule. This latter section has refer- ence to three classes of persons : 1, executors and administrators ; 2, trustees of an express trust ; and, 3, persons expressly author- ized by statute to sue ; and reads as follows : • " An executor or administrator, a trustee of an express trust, or a person expressly authorized to sue by statute, may sue without joining with him the person for whose benefit the action is prose- cuted. A trustee of an express trust within the meaning of this section shall be construed to include a person with tvhom, or in whose name, a contract is made for the benefit of another" [*13T] ^Express trusts. Before the amendment of the section, indicated by the words in italics, it was doubted whether the words " express trusts " did not refer solely to trusts of land authorized by the revised statutes, and which in the statutes are termed " express trusts." In the case of Grinnell v. Schmidt,^ in the New York superior couii, it was held, that the words should not receive this restricted meaning. Justice Mason in the opinion delivered in that case, after consultation with his asso- 1 1 Chit. PI. 83, 84. ' 3 Sand. 706. SEC. II.] OF PARTIES PLAINTIFF. 91 dates, says: " They are capable of a more extensive signification, so as to include all contracts in which one person acts in trust for, or in behalf of, another. Of this kind are contracts made by factors and other mercantile agents who act in their own names for the benefit of, and without disclosing, their principals." It was also said in that case that the plaintiffs (the factors) were " the proper and only proper persons to bring the action." And under this construction it has even been declared that the general agent of a society or association, not incorporated, may maintain an action for and on behalf of such company or associa- tion ;' a mere general statement, however, that the plaintiff is authoi'ized to bring the suit is not sufficient ; the nature and terms of his aiithority must be set forth, to enable the court to judge, as a question of law, whether he has such authority. A similar decision was made by the supreme court, at [*138] general term, in Erickson v. Compton,^ *wherein it was held, that it was proper for a principal to sue in his own name, on a contract made by an agent in the agent's own name, but of which the principal was sole owner. It was said, however, that the Code, in abolishing the common-law rule in regard to parties in such ease, conferred upon the principal the right to sue in his own name, or in the name of the agent, at his election.' It was held also in Grinnell v. Schmidt, that section 111 of the Code, which provides that every action must be prosecuted in the name of the real party in interest, etc., was but a statutory enact- ment of the rule respecting parties which has always prevailed in courts of equity, and the court was bound in its application to adopt, as far as practicable, those principles which have been found to be best suited to advance the ends of justice. Accord- ing to these principles, as we have seen,' the committee of a lunatic might prosecute a suit in equity to avoid the acts of the lunatic, to obtain paj^ment of a debt, etc., without joining the lunatic, and, therefore, independent of the statute of 1845, the Code, if this interpretation is correct, confers power upon the committee to do the same. Whether the words " express trust " may be construed in such a manner as to authorize the committee ^HaUeM v. Pemherton, 4 Sand. 657. ^ Per T. E. Stbong, J. 2 6 How. Pr. 471, General Term, 7tli * Ante, p. 88, marg. p. District 93 PARTIES TO THE ACTION. [CH. II. to prosecute an action concerning the real property of the lunatic without joining him may be doubted, but it by no means follows that such actions must be brought in the name of the [*139] lunatic alone.' On the contrary, the rule '^applicable to parties under the equity system would undoubtedly apply to such cases, and the committee, if not a necessary, would at least be a proper, party to the complaint," as the complaint of the lunatic in the names of both. In the case of Gorham v. Gorham' the chancellor held the rule to be that where a bill is filed by the committee of a lunatic to set aside an act done by such lunatic upon the ground of his incompetency, it is not necessary that the lunatic be a party ; but he may be joined as a party with his committee. In all other cases the settled practice is, either to join the committee with the lunatic, or to file the bill in the name of the lunatic by his com- mittee. Thus, in that case, it was said that the lim.atic was a necessary party plaintiff to a bill for partition of real estate. Such a bill, if the committee described themselves in their own names as committee, is their bill and not the bill of the lunatic by his committee ; and a decree in favor of the complainants would not be a decree in favor of the lunatic. Alluding to the doctrine laid down by writers in equity pleading, that lunatics must sue by their committees, the chancellor says, " when it is said, by these writers, that idiots and lunatics must sue hy their committees, it is not meant that the suit is to be brought by the committee, in his own name, merely describing himself as the committee of the lunatic, as has been erroneously supposed by the court of [*140] one of our sister States. But they mean * that the suit should be brought in the name of the lunatic, stating that he sues l/y the cotnmittee of his estate, naming them, as in the case of an infant suing by next friend." These remarks are well worthy of consideration in reference to the section of the Code alluded to. The practice indicated by them of bringing the suit in the name of the lunatic hy his committee, would doubtless be correct in all cases imder the Code. Still the committee may sue without joining the lunatic for the > Laws 1845, p. 90, 4 Edm. St. 553. » 3 Barb. Ch. 34. « 3 Barb. Ch. 34; 7 Johns. Ch. 189. SEC. II.] OF PARTIES PLAINTIFF. 93 purpose of setting aside acts or deeds of the lunatic done by him while such. The whole subject was very carefully considered in the recent case of Person, committee, etc., v. Warren and others,^ and the judgment of the court pronounced by Justice Taggaet was, that the committee of the person and estate of a lunatic was to be deemed " a trustee of an express trust, within the meaning of the Code, so as to enable him to sue alone. ° In regard to the appearance of a lunatic defendant, he may be joined with his committee in all cases, and he is doubtless a necessary party in an, action concerning his realty ; the commit- tee, as of course, putting in the answer of the lunatic as his guardian.' [A general guardian of infants may maintain an action in his own name, as such, to recover a debt due to his wards.*] As to the other trustees and cestui que trust, similar rules will apply. It was long the practice in chancery, when a trustee com- menced a suit, to require the cestui que trust to be made a party, otherwise it was said the latter would neither obtain relief nor be bound by it.' Still, the rule was not imperative. [*141] *And when the cestui que t/rust filed a bill (except against the trustee), both ought always to be joined as parties. Where the action is to remove the trustee, or for an account, etc., all the cestui que trust interested in the estate must join. A married woman in such case must sue alone by next friend, mak- ing her husband a party defendant.' A mere nominal trustee could not bring a suit in equity in his own name, but the cestui que trust must join.' But the trustees of real estate, for the pay- ment of debts or legacies, might sustain a suit, either as plaintiffs or defendants, without bringing before the court the creditors or legatees for whom they were trustees.' So assignees or other trustees of a fund, for the benefit of creditors, might sue for the protection of the fund, or the collection of part of it, without ' 14 Barb. S. C. 488 [BamsY. Spencer, n C. R. N. S. 309, 6 Paige, 237, 3 24 N. T. 386]. Johns. Oh. 243. [' The subject of suits by and against ■* Thomas v. Bennett, 56 Barb. 197. lunatics, habitual drunkards, etc., is ° See Edw. on Parties, 158, and considered by the editor of the present cases cited, edition in a note to the Matter of Me- ^ 6 Barb. S. C. 403. LaugUin, Clarke's Ch. Rep. 118, 119, ' 3 Johns. Ch. 38. newed.l ^Mitf. PI. 174. 94 PARTIES TO THE ACTION. [CH. II. making the cestui que trust parties.' But thoTigh the cest^d que trust was not in such cases a necessary party, still he might be properly joined in actions prosecuted for the benefit of his estate." It is scarcely to be supposed that the Code designed to cliange the equity rule in this respect, or do any thing more than authorize a trustee of an express trust to sue alone, permitting him, however, to join the cestui que trust in actions prosecuted for the benefit of the estate. What was said in the case of GriMnell v. Schmidt, above alluded to, though intimating that the word "may" was to be construed " must," was a mere dictum, and was not [*142] necessary to the decision of the * case. That the agent or trustee in that case was the " only proper person to bring the action," does not necessarily mean that the person for whose benefit the action is really prosecuted might not also be a party. [The people are trustees of an express trust, as to all bonds given to them for the benefit of parties, and the action must be in the name of the people, and not of the parties inter- ested.' The party interested may be joined as relator.* All the trustees should sue, although one has conveyed to the other.'] Executors and Administrators are also authorized by the Code to sue and be sued, without joining the persons for whose benefit the action is prosecuted. This, of course, relates only to actions concerning the personal property, and actions for wrongs to the deceased specified by statute. The executor or administrator has nothing to do with the real estate of the deceased, and actions concerning it should now, as befpre the Code, be brought by the heir or devisee in whom the title vests. In an action to recover the possession of, or to determine any claim to, real estate, the heir, and not the executor, is the representative of the deceased, and the only proper person to maintain such action. Though in an action to foreclose a mortgage the executor, and not the heir, is the proper party plaintift, the mortgage being assets in the hands of the executor, in such a case the heir is a proper party defendant.' And an action for the breach of a covenant of seizin ■ 1 Barb. Ch. 254, 4 Paige, 13. Peo'ple v. Townsend, 37 Barb. 520 , 2 Msk V. Hawland, 1 Paige, 20 ; People v. Laws, 3 Abb. 450, 4 id. 293. 8ohenclc v. ElUngwood, 3 Edw. 175. '^Pe.ople v. Laws, 4 Abb. 293. 8 Annett v. Kerr, 2 Rob. 550, 28 ' Tliatcher v. Candee, 33 How. 146. How. 334; People v. Norton, 9 N. Y. ' Edw. on Parties, 9. 176 ; Bos v. Seaman, 3 Code Rep. 1 ; SEC. II.] OF PAETIES PLAINTIFF. 95 or against incumbrances accrues to the personal representatives, and must be by tlie executor, and not by the heir.' But an action on a covenant which runs with the land, such as a lessor's coven- ant to repair damages by iire,'' a covenant not to erect [*14:3] buildings in front of the premises conveyed," a * covenant of warranty,* must be brought in the name of the heir, he being the real party in interest. An executor or administrator is not a proper party to a suit for a partition of real estate, nor for an injunction to restrain waste or trespass to lands, or for a specific performance of a con- tract made with deceased to convey lands, etc., etc. The Code does not intend, in this respect, to alter the rule as it existed before. Persons expressly authorized iy statute are also excepted from the operation of section 111 of the Code, and may still prosecute, notwithstanding they may not be the " real parties in interest." It is not deemed necessary to enumerate the various cases where persons are by statute authorized to sue. It includes all town and county oflScers,' supervisors, loan officers or commissioners of loans of a county, county superintendents of poor," commissioners of common schools, commissioners of highways, trustees of school districts and town superintendents of common schools.' It was said by Justice Beonson, in Supervisor of Galway v. Stimson' that, in general, all public officers, though not expressly author- ized by statute, have a capacity to sue commensurate with their public trusts and duties ; the authority to bring all suits which the proper and faithful discharge of their official duties requires, being an incident to their office.' The Code, however, [*144] has not limited the right of action to * persons expressly authorized by statute.'" The action should not be merely in the name of ofiice, but in the name of the ofiicer, with the ' 4 Jolins. 73, 10 Wend. 143. ['« In the opinion of the editor of * 3 Denio, 284. the present edition it was not intended ' 4 Paige, 510. to abridge the cases, wliere a public '' 1 Johns. 895, 11 id. 123, 15 id. officer could maintain an action. Peo- 497. pie V. Supervisors, 32 N. Y. 477. See 5 2 B. S. 236, § 5, 3 Edm. St. 341. Palmer v. Fort Plain, etc., 11 id 370 ; [' Alger v. Sherman, 56 Barb. 237.] Barker v. Loomis, 6 Hill, 463 ; Potter '3 R. S. 473, § 93, 3 Edm. St. 494. v. Dams, Lalor's Sup. 394 ; Mather v. 8 4 Hill, 136. Crawford, 36 Barb. 564.] « 18 Johns. 407. 96 PARTIES TO THE ACTION. [CH. II. addition of his name of oflSce.' Commissioners of highways, Tinder the statute, cannot maintain an action of trespass for injury to the highway.'' [They may maintain an action against a raiJroad company to compel such company to restore the high- way to its former state of usefulness, according to the obligation imposed by statute.^] The action upon an official bond of a town superintendent of common schools must be brought in the name of the supervisor to whom the same was given, or his successor in office. It cannot be brought in the name of a subsequent town superintendent of common schools. The case comes within the exceptions provided in section 113 of the Code ;" and generally the section applies to all suits by official persons, in their names of office, under special authority conferred by statute.' The president of a bank, ineoi-porated under the general bank- ing law, is authorized by statute to prosecute all actions [*14:5] brought by or on behalf of such * incorporation.' [Other- wise, as to an individual banker, carrying on business under the general banking act of 1838.' But suing as a corpo- ration in such case, is a mere formal error, amendable in the courts of original jurisdiction and disregarded by the court of appeals.'] Such actions may also be properly brought in the name of the bank." In case the action be brought in the name of the president, it should be with the addition of his title, and the alle- gation made in the complaint that he is such president, and that the bank was organized under the provisions of the general bank- ing act." If it appear, upon the complaint, that the cause of action belongs to another, it should also affirmatively appear that ' 4 Hill, 136. " Hoogland and Van WicTden v. Hud- 5 25 Wend. 365, 1 Denio, 510. son et al., 8 How. 348. P Laws 1855, oh. 355, p. 388. See « Chap. 260, Laws of 1838, ^ 21. People V. Troi/, etc., 37 llo-w. 427.] ■' Codd v. JRatlibone, 19 N, T. 37; * Fkiller T. FulUrton, 14 Barb. 59. Hallctt v. Earrower, 33 Barh. 538, 542. An action against a county should be " Bank, etc., v. Magee, 20 N. X. 355. brought against the " Board of Super- " Delafield v. Kinney, 34 Wend. 345 ; m'sora" of the county. But when the [LeonardsviUe Banhy.WiUard,!^ AWo. action is against the Supervisors, it 111 ; 35 N. T. 574.] should be brought against them indi- '" Root v. Marine, etc., 33 How. 373, vidually, specifying their name of 373. office. Wild et al. v. OolumMa Oounty Swpervisors, 9 How. 315. SEC. II. J OP PARTIES PLAINTIFF. 97 the person suing is expressly autliorizecl by the statute to bring the action, instead of the real pai-ties in interest. [The following persons are authorized to sue, by virtue of stat- utory provisions : The treasurer of a cheese factory ;' so such an action may be brought against one of the patrons of such a fac- tory by all the other patrons ;° the president of a Christian asso- ciation ;' a division of sons of temperance ;* a steamboat company f and, indeed, all joint-stock associations, composed of more than seven persons, oioning 'property in common." In a suit to wind up a club or partnership, all persons interested must be made parties, though they are numerous ; it is not sufficient for one to sue on behalf of the others.' The object of the statutes of 1849,° 1851" and 1853" was not to create any new causes of action, but to obviate the inconvenience of bringing in all the shareholders or associates as parties." If the associates of such a joint-stock company are sought to be charged, an action must first be brought against the president or treasurer of the association, and the remedy against their joint property ex- hausted ;" but the original cause of action must be stated in the complaint, as the action against the stockholder is based upon the original cause of action against the company." The acts do not embrace fire companies." The statutes apply to any joint associa- tion, although the members are not shareholders or stockholders,'* but only to actions to reach joint property and effects. ""J Siibstitution of parties plaintiff. If the contract is assigned after the action is commenced, the action must be continued in the name of the original party unless the court allows the person ' Bridenhecker Y. Hoard, 33 How. "Laws 1851, p. 838, 4 Edm. St. 653. 289. '» Laws 1853, p. 383, amending 8 4 of - Thompson v. Howe, 46 Barb. 287, act 1849, 4 Edna. St. 651. 388. ' " Corning v. Greene, 23 Barb. 33 ; af- ^De Witt V. Glmndler, 11 Abb. 459. firmed, 26 N". Y. 472, note, 38 How *TihUttsY.Bloocl,2fBsi.j:'b.%50. The 581. question was not passed upon in >4.MSi{m ^'^ Bobbins v. Wells, 1 Eob. 666 18 V. Searing, 16 N. Y. 112, 125. Abb. 191, 26 How. 15; Witherhead v. ' Witherhead v. Allen, 28 Barb, 661 ; Allen, 3 Trans. App. 358, reversing 38 reversed on another point, 3 Trans. Barb. 661. App. 258. " Witherhead v. Allen, 3 Trans. App. ^ Bridenbecker v. Hoard, 33 How. 358, 3 Keyes, 562; but see Miller v 397. White, 8 Abb. N. S, 46. ' Richardson v. Hastings, 7 Beav. 301, " Masterson v. Botts, 4 Abb. 130. and see note, p. 308, Banks's ed, " Kingsland v. Braisted, 3 Lans 17 8 Laws 1849, p. 389, 4 Edm. St. 650. ■« Borke v. Russell, 2 Lans. 344. 13 98 PARTIES TO THE ACTION. [CH. II. to whom the transfer is made to be substituted.' Under this sec- tion it has been held, that where one plaintiff, after action com- menced, assigned all his interest to his co-plaintiff, and the latter died, it was optional with the court to allow the action to be con- tinued in the name of the administrator alone. Inasmuch, as in such case there would be no party but an administrator to respond to the defendant in costs, the action was directed to be continued in the name of the surviving plaintiff, though he had assigned his demand, and the representative of the deceased one." [146*] So in case of any other transfer of interest after *com- mencement of suit, or in case of death, marriage or other disability, the court will allow the action to be continued by or against the party's representative or successor in interest.^ In case of the death of a plaintiff, his personal representatives have no right to elect, whether it shall stand revived or not ; the defendants are entitled to have the action continued in the name of the plaintiff's representative.* As to the practice of reviving a suit iy supplemental com/plaint, in the name of the plaintiff's personal representative, after the lapse of a year, see Greene v. Bates!" See, also, 'Williamson and wife v. Moore, in the Xew York superior court," holding that where some of several com- plainants die, and the cause of action does not survive but con- tinues as to the survivors, the latter cannot be compelled to revive the suit against the representatives of the deceased com- plainants. In case of the death of a party, the cause of action must be one which survives, in order to authorize the court to allow it to be continued by the representative.' Hj statute, actions for injuries to the property, rights and interests of another survive in the same manner as actions on contract, except, however, actions for slander, libel, assault and battery, and other injuries to the per- son.' In the cases last mentioned, the cause of action dies with the person, and leave cannot be granted to the executor or 1 Code, § 121. 6 7 How. Pr. 296. '' Sheldon and Phelps v. Havens, 7 "5 Sand. (!47. How. Pr. 208. ■> 3 How. Pr. 385. ^ Code, tf 121 ; Waldorph v. Bortle, i « Ante, murg. p. Ill et seq. How. Pr. 3.58. '' Ridrjieay v. Bulldcy ri ah, 7 How. Pr. 269.' SEC. II. J OP PARTIES PLAINTIFF'. 99 [*14Y] administrator to continue it, unless in the one *case of injury to the person, as provided by the statute of 1847.' Where a party prosecuting an action for such an injury dies pend- ing the suit, the court will doubtless allow it to be continued by his personal representative under this section of the Code. The suit, however, must have been actually commenced by the ser- vice of the summons before it can be revived on the death of a party." The term "successor in interest" does not include the people when they claim lands by escheat." And therefore it would not be proper lor the court, on motion, to allow the people to be made a party in an ejectment suit on the death of the plaintiff. A party claiming to be substituted must show who is the suc- cessor. He must make out a prima facie case before the right attaches.' The substitution has been refused to be made in a suit pending before the Code took effect, for the reason that the provision as to such suits was unconstitutional.' Also, where the principal object of the substitution is to make the original plaintiff' a witness.' The " successor in interest," in case of a transfer or assignment, is the person acquiring the title or property. The " representa- tive" is the administrator or executor in suits which would be properly brought by them and the heir in actions concerning the realty, as, for example, an action for an injunction to stay waste, for the recovery of real estate, etc., etc' [Formerly an action of ejectment could not be revived.* Other- wise now by statute." And so formei'ly of an equity suit." It has been held that, if a party be convicted of a felony, he is ci^•illy dead, and an action pending hy him abates." But he may be made defendant and process served upon him in State prison." An action will not lie in the supreme court to obtain leave to I Chap. 450, p. 575, Laws 1847. ^o Huet v. Lord Say, Mac Nagliten's '' 3 Code, 139. Select Cases, 155, and note, pointing ' 4 How. Pr. 339. out the difference between a bill of ■■ 4 How. Pr. 329, 1 Denio, 50. revivor and one in the nature of revi- ' 5 How. Pr. 869. vor. «6How. Pr. 330. " O'Brien v. Hagan, 1 Duer, 664; ' See Waldorph v. Bortle, 4 How. Pr. Freeman v. Frank, 10 Abb. 370. 358. " Davis v. Duffie, 8 Bosw. 617, 18 8 Bequa v. Holmes, 19 How. 430 ; Abb. 360, affirmed, 3 Trans. App. 54, Kissam v. Hamilton, 30 id. 369. 4 Abb. N. S. 478 ; Freeman v. Frank, 9 Laws 1865, p. 634. 10 Abb. 370. 100 PAKTXKS TO THE ACTION. [CH. II. issue an execution upon a judgment of the county court.' The county court has juristliction of an action for that purpose." Where, after decree, an infant was born who became interested in possession and was a necessary party, but was, by inadvertence, overlooked, and sales were made and approved, the court cannot revive the action nunc 'pro tunc with the same effect as if the in- fant had been made a party immediately after his birth. ^ The effect of an abatement, by death or otherwise, is, with a few excep- tions, some of which are hereafter noted, to suspend all proceedings in the action until a re%'ivor is had." If, after abatement of a suit, proceeding's be taken therein, the representatives of the party against whom they are taken may set them aside.' But if a party die after judgment in foreclosure, the referee may sell without a revivor." Otherwise if the party die before judgment.' And a judgment, if due, may be entered the same term, or during the vacation.' So if, after a cause is tried or an appeal argued, a party die, the decision may be made and carried out « unc pro tunc as of a time prior to such death." If a plaintiff in eject- ment die the action may be continued in the name of his heirs without making his widow a party.'" In an action to have mortgage canceled as a cloud upon title, if the plaintiff die the action should be revived b.y his heirs and his representatives." If an action be revived, the time within which the opposite party is required to do any act will not com- mence to run until the representatives of the deceased parties are substituted."' And if notice of judgment be given, and the party die before the time to appeal expire, his representatives may revive the action and appeal." The decision will not be entered ' mUs V. Perry, 29 How. 193. ^ Tliottipson v, Diidlei/, 3 Edw. Ch. 137. ' Laws 1864, p. 1194. » 2 R. S. 359, ? 7 ; 3 Edm. Stat. 372, 9 ' Wafker v. Widker, Law Rep., 9 Wend. 455, 3 Bradf. 313, 1 id. 488, 17 Equity Cases, 663 ; Scott v. Dxmcomhe, Abb. 36 n. id. 664, overrulino- (Iruinoelly. (rarner, ' Ddaplnine v. Bergen, 7 Hill, 391; 8 id. 355. See / Ogden v. Lee, 3 How, 153. » People v. Wood, 2 Abb. N. S. 315. 2 Ehle V. Moyer, 8 How. 344, Eyre v. ' 3 R. S. 474, 3 Edm. St, 494-496, EolUer, 13 Irish Eq, 607. '» 3 R, S, 474, § 100, 3 Edm, St, 496 ; ^ Saunders v, Plummer, 0, Bridg, 333. Manchester v. Herrington, 10 N, Y, 164 ; [This case can be read with much profit Golerjrote v, Bi-eed, 3 Denio, 135 ; Over- by those desirous of acquiring a knowl- seers v. Beedle, 1 Barb, 13; Williams edge of the common law as to revivor,] v, Keech, 4 Hill, 170 ; overruling Baker ^ Kissam v, Hamilton, 20 How, 369, v, Norton, 3 id, 475, 375. " 3 R, S, 388, § 13, 3 Edm, St, 403; ' Johnson v. Budge, 1 Cromp,, Mees, see 1 Burr. Pr. (3d ed.) 383. & Rose. 647. 12 3 R g 387^ sgg^ 2 Edm. St. 402, « Manchester v. Herrington, 10 N, Y, 403, gs^ 8, 9, 10, 11, 13 ; sec 1 Barr, Pr, 164. (3d ed,) 383, 384, ' 3 R, S, 387, § 5, 3 Edm, Stat. 403, " Warren v. Eddy, 13 Abb. 38. Kissam v. Hamilton, 30 How. 874. 102 PARTIES TO THE AOTIOK. [CH. II. action to a speedy termination than of the representatives of the deceased. Tlie latter provision is nseless and unfortunate. In many cases representatives are not appointed within a year, and tlie opposite party has no power to coerce such an appointment. If the pL^intifl' die hefore judgment, and the defendant seeii a revivor, he cannot file a " supplemental complaint." ' If the suit were of an equitable character, he could proceed under the Revised Statutes,'' which do not limit the period for sirch proceed- ing ; but, if an action at law, it is not easy to see how he could force a revivor.' The court might order that the representatives file a supplemental comjDlaint, or that the action be dismissed ; ■* but this might not answer his purpose, as, in order to obtain jus- tice, it might — as, for instance, in replevin, where plaintiif took the property — be absolutely necessary that he have power to com- pel a revivor. It is doubtful whether a defendant can, before judgment, compel a revivor as a matter of right after the year has expired.' It would be far better to strike out of the section the words " within one year thereafter, or afterward on a supplemental com- plaint," and " within one year after said death, or afterward on supplemental complaint." The provision requiring a supple- mental complaint, after one year, does not apply to a revivor in the court of appeals," and probably not to any court after judgment.'' The representatives of a defendant have, after judg- ment, an absolute right to revive the action.' By the allowance of an attachment there is a sufficient commencement to authoi'ize a revi- voi'," and so to enforce an equitable, lien.'" A suit cannot be re- vived, where costs only are involved, unless they are taxed." If more than a year has expired since the death of the party, the court has no power to revive the action by motion,'" but the party may file ' Banta v. Mareellus, 2 Barb. o75, 2 SchucJiardt v. Remiers, 28 How. 514, Barb. Cli. Pr. 41. but see Livermore v. Baiiibridge, 61 5 2 E. S. 185 ; 3 Bdm. St. 193 ; Renr- Barb. 358. wick V. Cooper, 10 Paige, 305 ; Rogers ^Hastings v. MeKinley, 8 How. 1T5; V. Patterson, 4 id. 413-418 ; Matter' of Anderson v. Anderson, 30 Wend. 585. Bornsdorf, 41 Barb. 211. [The method ''Rogers v. Patterson, 4 Paige, 41 3416. of affecting such a revivor is pointed out " Sehuchardt v. Remiers, 2f^ How. 514. 'm Reqriav.Holm.es, 19 liow ASS L-tseq.'] ^ TJinelier v. Baneroft, 15 Abb. 24o. 3 Ridgway v. Bulkley, 7 How. 269. '» Broinn v. A''icJiols, 9 Abb. N. S. 1. ■• Greene v. Bates, 7 How. 396, but " Thorn v. Pitt. Mac Naghten's see 1 Hare, 617, 5 Irish Eq. Rep. 446, Select Cases, 158 n. Blackeqrne, M. R. " Matter of Bornsdorf, 17 Abb. 168 ' Keene v. Lafarge, 1 Bosw. 671 ; 41 Barb. 311. Sec. II,] OF PARTIES PLAINTIFF. 103 a supplemental complaint, though not, as a matter of course, with- out leave of the court.' If defendant interpose a counter-claim, the action, on the plaintiff's death, may be revived against the wishes of his representatives." If, on the death of a part}', the cause of action survive to or against some other parties, so that a perfect decree or judgment as to every part of the litigation can be made between the surviving parties, the suit does not abate as to the survivors, and no revivor is necessary ;' as where several creditors file a bill on behalf of themselves and all other creditors, and one die," otherwise if brought on behalf of themselves aione.' Upon entering final judgment, a suggestion of the death of the deceased parties should be made upon the record, in conformity to the statute." In an action by husband and wife against husband and wife, for slander spoken of one of the women against the other, if one of them die before verdict the action abates.' If one of two partners give a satisfaction of a partnership judgment, which is set aside as to the other partner, but allowed to stand as to the one who executed it, and the plaintiff as to whom it is not set aside die, his representatives may revive.^ An action for wrong- fully causing the death of one survives against the wrong-doer's representatives." If an action be commenced in the name of a dead man his representatives cannot revive." In the case of death of a plaintiff after judgment the action may be revived by an action in the natiu-e of a sa'ire facias ;" but his representatives cannot issue execution by leave of the court, nor can they revive the judgment by a motion under section 121 of the Code ;" nor against a defendant who died after judgment." 1 Beach v. Reynolds, 64 Barb. 506 ; '« Glay v. Oxford, L. R„ 3 Ex. 54. overruling Matter of Bornsdorf, 17 " Brothersuii v. Consalus, 26 How. Abb, 168 ; 41 Barb. 211 ; Roach v. Le- 234. farge, 43 Barb. 616. " Ireland v. Litchfield, 8 Bosw. 634 ; '' Livermore v. Buiuhridge, 43 How. 33 How. 178 ; Thurston v. J-Cinff, 1 53. Abb. 136; Schuschard v. Beiiiier, 1 ^ Lachaise V . Liliby , 13 Abb. 6 ; Ley- Daly, 460; Jay v. Marline, 3 Duer, gett V. Dubois, 3 Paige, Sll. 651 ; Cameron v. Younej, 6 How. 373 ; ^ Leigh v. Thomas, 3 Vesey Sen. 312. ^YheeU■r v. Beildn, 13 'id 537 ; Alden ' Boddy V. Kait, 1 Merrivale, 361. v. Clarl.-, 11 id. 209; Friuk v. ihrri- " 3 R. S. 386, S 1 ; 3 Bdm. St. 401. son, 13 Abb. HO ; Matter of Bentley, 16 ' Cowley V. Ponlton, Hobart, 139 a, id. 89 and note, p. 90; Baeies v. Skid- Code, § 131. more, 5 Hill, 501. « Hackett v. Beldrn, 40 How. 289. '^ Id. ' Tertore v. Wiswall, 16 How. 8, but see Vittum v. Oilman, 48 N. H. 416. 104 PARTIES TO THE ACTIOW. [CI£. 11. If it be songlit to sell lands, by virtue of a lien arising from the docketing of a jiidgment after the death of a party, an action must be commenced to obtain an execution to be issued in the name of the representatives of the judgment creditor against the representatives of the judgment debtor, to be levied of any lands which the judgment debtor held when the judgment was dock- eted.' So, on reviving a suit by supplemental complaint agaiijst heirs in possession to charge them with rents and profits, a new suit, such as was formerly a bill in the nature of a bill of revivor, must be commenced." If a receiver die during the pendency of an action, his successor may revive the action by supplemental complaint.' The practice as to filing a supplemental complaint is that of the late court of chancery.* A summons for relief must accompany the supple- mental complaint, and must be served upon the party sought to be brought in and not the attorney of the former party.' As to what actions survive and may be continued, see aute (marginaV), page 111 et seq. In actions of tort the court, on granting a new trial, sometimes imposes a condition that the action shall not abate in case of death of one of the parties.' It a revivor be had all proceedings already taken stand in full force.' The reader who wishes to investigate the effect, at common law, and prior to the Code, of the death, marriage or other dis- ability of a party to an action, and when and how a revivor could be had at law, will find the desired information in Bou- vier's Law Dictionary, title Abatement ; Bacon's Abridgment, title Abatement ; Jacobs' Law Dictionary, same title ; Graham's Practice (2d ed.), 806-816, 965; 1 Burrill's Practice (2d ed.), 281-284; 2 id. 165-16Y ; 1 Chitty's Pleadings, 19; Yimtm v. Oilman, 48 JST. H. 415. And in equity, 2 Daniell's Chancery Practice. (3d Am. ed.) 1586-1626; 1 Barbour's Chancery Practice, 6Y4-685 ; 2 id. 35-58; Story's Equity Pleadings, §§ 329-331, 354-387. As to the difference between abatement in actions at law and ' Id. N. S. 594 ; Griffith v. Williams, 1 C. & 2 Taylor v. Taylor, 43 N. T. 585. J. 48 ; Freeman v. Bosher, 13 Q. B. ' Palmer v. Murray. 18 How. 545. 780, 66 Eng. Com. Law. ■= Qri'cn V. Bates, 7 How. Pr, 296 ; « Id. Code, S 468. ' M persons receiving and holding assets in succession in virtue of their representative character, and persons having distinct inter- ests in the same security, either jointly or in succession.'' On a bill filed by an heiress at law to set aside conveyances of real aiiA personal estates on the ground of fraud, undue infl.uence and want of consideration, the want of proper parties to represent the personal estate, comprised in the imjjeached conveyances, is a fatal defect." Several proprietors of distinct lands and of separate parts of a water-course ha\'e such a community of interests that they may join in a suit to restrain a diversion.'' So, several bene- ■ 1 Story's Eq. Jur., § 457. id. 45 ; Em v. Lam, L. R., 11 Eq . 215 ; ' Story's Eq. PI., § 219 ; Eichtmyer Walworth v. Holt, i Myl. & Cr. 619. V. Bichtmyer, 50 Barb. 55; Iddings ^ Farmer v. Farmer, \Yio-ase Lords V. Bruen, 4 Sandf . Cli. 234, and see Cases, 734 ; WilkiJison v. FoicJces, 9 Hare note to Marcos v. Pebrer, 3 Sim. 466 , (41 Eng. Ch. Rep.) 193. 6 Eng. Cli. Rep. (Banks's ed.) -.Blain v. ^ Reid v. Gijford, Hopk. Cli. 416 ; Agar, 2 Sim. 37 ; Green v. Barrett, 1 Belknap v. Trwible, 3 Paige, 577. SEC. in. J OF PARTIES DEFENDANT. 109 ficiaries under the same tviist, though their interests be not joint, may join as complainants in one suit." Both sets of plaintiffs would prove the same fact, to wit, the creation of the trust as the foundation of their action, and all their rights could be as well and better adjusted in one action. ° And one stockholder, in behalf of himself and all others similarly interested, may maintain an action against the directors and treasurer of the corporation to prevent the payment of an illegal claim.' The plaintiff, in such a case, must show how he derived title.* So a creditor of a mutual insurance company may maintain a bill in equity against the officers of the company who, having funds of the company in their hands to pay the plaintiff's claim on the company for a loss, have neglected and refused to pay it, and fraudulently applied the funds to other purposes. Biit the company is a necessary party ;' and a stockholder may prevent the using of a subscription for anj' except the purposes for which it was raised." Though the action be in form in behalf of all the stockholders, it may be maintained although the plaintiff be the only stockholder who insists upon the relief So creditors who claim under separate judgments may pursue the debtor's property, although transferred b}' different conveyances and at different times, and to different persons.' Legatees must make all persons parties who iiiay be affected by the action." So where parties having separate and distinct inter- ests have been enjoined in one suit, their cause of action grows out of the fact that but one bond was given and not the nature of their interests, and all may join as plaintiffs in an action upon it ; '° but if their interest in the recovery be several they Tnay bring separate actions." ' Robinson v. Smith, 3 Paige, 222 ; ' Lyman v. Bonney, 101 Mass. 562. Egberts v. Wood, id. 517. ° Bagshaw v. Eastern, etc., 2 JIacN. « Story's Eq. PI., t;§ 207, 208, 210, 214. & G. 389 and cases in note to Little, 3 Butts V. Wood, 37 N. Y. 319 ; Kerr Brown & Co.'s ed. on Inj. 548, 558 ; see post, marg. p- ' White v. Carmarthen, 1 Hem. & 173 ; Ilichens v. Cotigrem, 4 Russell, 563 Miller, 786. and note, p. 577 (Banks's ed.) ; Walker ^ Reed v. Stryker, 13 Abb. 47, re- V. Devereaux, 4 Paige, 229; Oray v. versing S. C.,6 id. 109 ; TF«rfc v. iJ/^f/ifc, GhapUn, 2 Sim. & Stu. 267 ; Bodge v. 4 Bosw. 537 ; Bank, etc., v. Suydam, 6 Woolsey, 18 How. (U. S.) 821 ; Samuel How. 381. V. Hoiliday, Woolw. C. C. 400 ; Bag- ' Tonnelle v. Hall, 3 Abb. 206 ; ihaw V. Eastern, etc., 2 MacN. & G. 389 ; Story's Bq. PL, §S 208-207. but see Taunton v. Royal Ins. Go., 2 " Loomis v. Brown, 16 Barb. 325, Hem, & Miller, 135. 330-332 ; Packard v. Hill, 7 Cow. 434. ■* Walhurn v. Ingilby, 1 Myl. & " James v. Emery, 5 Price, 529 ; 1 Keen, 61. Pars, on Cont. (5th ed.) 11-20. 110 PARTIES TO THE ACTION. [CH. II. All the heirs should be sued jointly for a debt against the intestate.' So all the holders of fraudulent stock overissued bj' an officer of a corporation.^ All the legatees under a will may bring the action against all persons who are or may become liable to pay, and each have a separate judgment for his legacy. ° And whei'e trust funds, or funds out of which the legacy should have been paid, had been mingled with her own by deceased, and had thus passed to others, it was held, they might be made parties, and a decree had against them for such portions of the property as they had received.* When a fund is in the hands of a trustee, which he is bound to distribute to different persons in proportions which are not ascertained, all interested in the distribution are necessary parties to an action against the trustee.' A plaintiff may unite a cause of action as executrix with one as devisee, where both accrued under a contract made by the testa- tor with the defendant, growing out of the same matter ; as devisee for the rent of a farm, leased to the defendant by the testator, which had accrued subsequent to his death ; and as execu- trix for breaches of covenants in the lease, to repair the build- ings.' So a cause of action on a contract with the testator and one on a contract made with the representative, as such for both, on recovery, will be assets.' So if thei-e are two executors and one die, in a suit for administration of assets, the representative of the deceased executor and the surviving executor may be joined as defendants.' Not so, however, when relief is sought individually, and as trustee, or in a representative capacity ;° nor when relief is sought against a part of several defendants as trustees, and others indi- vidually ;'° nor can plaintiff unite a claim by him as an individual, ' Kellogg v. Olmstcad, How. 487. ' Partridge v. Omrt, 5 Price, 413 ■ ^ New fork, eic, v. Schuyler H al., affirmed, Ex. Cham. 7 id. 591 17 N. Y. 593, 7 Abb. 41, 38 Barb. 534, » Holland v. Prior, Cooper's Rep., 34 N. Y. 30, 34 How. 303 ; see Jh-iiff Temp. Brougham, 430. V. Mali, 36 N. Y. 300 ; Henning v. New » Lattiiig v. Lattiiig, 4 Sandf. Ch. 31 : York, etc., 9 Bosw. 383. Lniidau v. Levy, 1 Abb. 376 : Benjamin 3 Towner v. Tooley, 38 Barb. 598, v. Taylor, 13 Barb. 328 ; McMa'hon v 606-608. Allen, 3 Abb, 89, 13 How. 40,1 Hilt. ■* Trustees v. Kellogg, 16 N. Y. 84. 103 ; Worth v. ]i,idde. 18 Abb. 396, 38 " General, etc., V. Benson, Sllncr, 168. How. 330 ; but see &« ('i'/i v. Oeortner,40 'Armstrong v. Hall, 17 How. 70; How. 1H5. Pugsley v. Aikin, 11 N. Y. 494 ; Benja- '» Alger v. Sconll. 6 How. 131 . 1 Code min V. Taylor, 12 Barb. 338. R. N. S. 303 ; lUcMmyer v. niehtmi/er, 50 Barb. 55. SEC III. J OF PARTIES DEFENDANT. Ill and one in a representative capacity ;' nor as an individual and as one of the public generally ;" nor against all of the defendants jointly, and one or some of the defendants, severally.' But a plaintiff may unite a cause of action against the defendant for a legacy to plaintiff on account of lands devised to him, subject thereto, and which devise he has accepted, with a claim for money had and received, goods sold and delivered, and for rent due plain- tiff from defendant.* In partition, the wife of an owner entitled to dower is a neces- sary party f but in a suit for partition belween tenants in common of an estate carved out of a fee, the owner of the fee is not a necessary party." The owners of separate animals cannot be sued jointly for an injury done by them.' Nor can different owners as tenants in common of a pew, who agreed to pay toward rebuild- ing the church, in proportion to their interests.' Where several legatees gave a power of attorney, held, each could sue for his share ;° and one of several heirs may sue for his share of the rent of real estate leased by his ancestor." One creditor may sue with- out joining another whose share of the debt has been paid." The same person cannot be both plaintiff and defendant ;" nor can one trustee of a religious corporation be sued by his co-trustee as a trespasser in respect to its property, until he is divested of his character and authority as such." But where A was a partner of two firms, held, the creditor firm might sue the debtor firm in equity upon an account stated, making A a defendant ;'* otherwise at law, ' Sail V. Fisher, 20 Barb. 441 ; Lucas 562 ; AucJimuty v. Ham, 1 Denio, 405; V. N. T. Central B. R., 21 id, 345. Partenheitner v. Van Order, 30 Barb. '^ Warwick v. Mayor, 38 Barb. 210, 479; Wilbur v. Hubbard, :^5 id. 303. 7 Abb. 365. The curious reader will find a very ^ Badgers v. Badgers, 11 Barb. 595 ; amusing article upon the latter ease in Viall V. Matt, 37 id. 308 ; Barnes v. the New York Daily Transcript, for Smith, 16 Abb. 430 ; Wells v. Jewett, 11 March 36, 1863 entitled, " In Re Hub- How. 243 ; LeRou v. Sliaw, 2 Ducr, 626. bard's Dog.' V. Qridley, 24 N. Y. 130, « St. Paul's Church v. Ford, 34 Barb, reversing 33 Barb. 350. 16 ; but see Ballard v. Burnside, 49 6 1 Story's Eq. Jur., § 656 ; Ripple v. id. 103. Gilbarn, 8 How. 456 ; Gordon v. Ster- ' Power v. Hathaway, 43 Barb. 315. ling, Ms. Gen. T., 6th Dis., Sept., 1857, '« Jones v. Fetch, 3 Bosw. 63. reversing S. C, 13 How. 405 ; People " Bishop v. Edmiston, 16 Abb 466. V. Woods, 2 Code E. 18; Jackson v. '« G Pick. 316, 11 Met. 399, 19 Pick. Edwards, 7 Paige, 886, 391, 402-41 1, 78; Morley v. French, 3 Cush. 130 3 disapproving Matthews v. Matthews, 1 Greenl. Ev., ^ 478 ; iVa.s/i v. Bussell. .'5 Edw. Ch. 565. Barb, 558. ' ^ Canfield v. Ford, 16 How. 473, ^^rrustees,ctc.,N.8tewart,m'B&vh.n5Z. affirmed, 38 Barb. 336. " Cole v. Reynolds, 18 N. Y. 74 ; Trad- ' Van Steenburgh v. Tobias,V7 Wend, ers' linnk v. liradner, 43 Barb, 379, 112 PARTIES TO THE ACTION. [CH. II. if the account had not been stated;' but it is not a bar to a recovery that one of several defendants lias become possessed of the right of action prosecuted against him and his co-defendants unless his name appears upon the record both as a plaintiff and defendant ;° and an executor may sue his co-executor in equity upon a debt due the testator.' A party, as an attorney, who assists in procuring a fraudulent transfer to another, is a proper party to an action to set it aside;' but the complainant must demand costs against him or it will be demurrable." If one of the parties is connected with a part of a cause of action which cannot be pro- , secuted in several suits, he cannot demur for multifariousness." The reader will find many valuable suggestions as to parties in cases of frauds, in Kerr on Frauds, 303 et seq., 1st English edition. (An American edition of this valuable work has recently been published by Baker, Voorhies & Co., of New York.) He should also consult Barbour and Edwards on Parties, Voorhies' Code, Story's Equity Pleadings, Story's Equity Jurisprudence, and the various works upon pleadings and practice. See, also, post, inarg. p. 191.] But can a plaintiff under the Code, after joining such parties as are absolutely necessary, and such as were proper by the well- recognized rules of the former equity system, unite with them, as defendants, others who have no legal right in the controversy which may be affected by the judgment ? It seems manifest that he cannot, if the objection is taken at the proper time by the demurrer or answer. There is no provision in the Code author- izing an action to proceed against a defendant, in respect to whom there is no legal or equitable cause of action, or who is not neces- sary " to a complete determination or settlement of the questions involved therein." Nor was there any thing in the old system which authorized it. It is not right in any case to make a ' Englis v. Furniss, 2 Abb. 333, 4 Hare, 438 ; Kerr on Frauds (Bng. ed.) E. D. Smith, 587, S. C, 3 Abb. 83 ; and 336, and numerous authorities cited ; see an article upon this question, 5 but see My v. Loioenstcin, 9 Abb. N. S. Am, Law Rev. 47 ; and see ante, marg. 88. pp. 129, 134. <■ Crofts v. Allman, 13 Irish Eq. Rep. 2 Blanchard v. Ely,21 Wend. 343. 451,461 ; Le Te.ri.er v. The Margravine, ' McGregor v, McGregor, y.T N. Y. etc., 15 Ves. 164; Beadles v. Siireh, 10 218. Sim. 333 ; Roddy v. Williams, 3 Jones ■* McGos/cer v. Bradi/, 1 Barb. Ch. & Latonclie, 1. 339, 1 N. Y, 214 ; jriiiji/iiin v. Tving, » Crofts v. Allman, 12 Irish Eq. Rep. 3 Barb. 616, 619 ; Seddon v. Goniiel, 10 464 ; Attorney-General v. Poole, 4 Myl. Simons, 85 ; Marshall v, Sladden, 7 & Cr. 31. SEC. III. J OF PARTIES DEFENDANT. 113 person a party to a suit unless a decree can be obtained [*154] *against liim, and no one is to be made a defendant merely to pay costs.' [The author should have excepted attorneys and others who assist in procuring a fraudulent transfer, will, judgment, etc.'' An attorney cannot shield himself from costs on the ground that he was his client's adviser," and so where he does not explain to his client the nature of the instrument ; * but an attorney is not a proper party merely to obtain an injunc- tion restraining proceedings on behalf of his client.*] Bills have been dismissed on the ground of making persons parties to the end that they may litigate their own title.' No person can have a right to call another into court to make him contest a future legal I'ight.' The commissioners of the Code say that they intend to leave the plaintiff at liberty to " bring in all the parties whom he wishes to affect; and that, inasmuch as judgment may be given for or against any one or more of the plaintiffs or defend- ants, the plaintiff who shall bring in too many parties will merely encounter the hazard of paying costs. " ' That is, we presume, if the objection of too many parties is not taken by demurrer or answer, it is held to be waived," and cannot be raised on the trial ; but in such case the court is to determine which are the unneces- sary parties, and give judgment dismissing the complaint as to them with costs, while the plaintiff gets his relief as against the other defendants. The commissioners certainly could not mean that the suitor himself was to choose whom to make defendants, because they elsewhere say a main object has been " to require the real jpariy in interest to appear in court as such." " Section 120 is also repugnant to any such idea, because it expressly pro- vides a class of cases in which the right is given to a plaintiff to include several defendants in the same action. [*155] The whole theory of the former equity system, *indeed, as it was well settled in this State before the Code, is ' Edw. on Parties, 14. ' Ely v. Lowenstein, 9 Abb. N. S. 38. ^ McCosTcer v. Brady, 1 Barb. Ch. ^ Edw. on Parties, 13. 329, 1 N. Y. 214 ; Huggins v. King, 3 ' 1 Eden, 520. Barb. 616 ; Seddon v. Gonnell, 10 Simons, ^ Rep. of Com. 125. 85 ; Marshall v. Sladden, 7 Hare, 427. » Am. Code, §5 148. 3 Bennet v. Vade, 2 Atk. 324 ; Ear- " Rep. of Com. 123. vey V. Mount, 8 Beav. 439 . * Moore v. Prance, 9 Hare, 303, and see Kerr on Frauds, 326 (Eng. ed.). 15 114 PARTIES TO THE ACTION. [CH. II. utterly repugnant to any such doctrine that the plaintiff may " bring in all the parties he wishes to affect," etc., etc. It was a good ground of demurrer to a bill that a defendant who had no interest in the controversy had been joined with other parties as a defendant in a suit.' No person was properly a party defend- ant against whom no charge could be supported, and, if no demur- rer was interposed, the bill was usually dismissed at the hearing against such party with costs." The objection, however, was usually taken by demurrer, as where a person was made a party defendant on the ground of his being an agent merely ; ^ or, if the objection did not appear upon the face of the complaint, by answer. It was ruled by the chancellor, however, that one defendant could not demur to the bill because other parties were improperly made defendants ; the objection could only be taken bj' those persons themselves.* The same rule has been recognized under the Code in a late case,' in which it is stated that the joinder of improper parties defendant is only available as a ground of demurrer by the defendants so improperly joined. [*156] It has been held since the Code ° that a *judgment cred- itor, in a complaint to set aside an assignment, need not make all the creditors parties, though it would be otherwise in an action to establish and carry out the assignment. This is entirely similar to the former equity rule.' It has also been decided that an assignee of a mortgage may be made a defendant in an action to set aside the mortgage as usurious.' And this was precisely the rule in equity before the Code." In order to join parties as defendants, under section 118, it is necessary to allege something more in the complaint than that they claim an interest adverse to the plaintiff. The nature of the claim should be stated. Thus, in StryTcer v. Lt/ncJi,^' a demurrer was allowed to a complaint in partition on the part of certain ' Muir V. Lechkc and Watts Orphan subiect further discussed, post, ch. VII, House, 3 Barb. Ch. 477. § 2 '[55 Barb, nn ■ 48 id. 57]. '^ Brinkerhoff v. Broion, 6 Joliiis. Ch. ' Bank of Brituh Xorth America v. 158. /^Ill/dam and others, How. Pr. 379. 3 Onrr v. Brir/Iit, 1 Barb. Cb. 166. ■•' Christie v. llerrifk. 1 Barb. Ch. 254-. " Writbeck V. /idr/iir, 3 Barb. Ch. 106 ; ^ ] 11 Leg. Obs. 116. others, 8 How. Pr. 392, and see this SEC. III.] OF PARTIES DEFENDANT. 115 defendants who, it was alleged, claimed some right or interest adverse to the plaintiffs in the land, which claim it was further alleged was inequitable and void. It has been recommended as a correct practice, in the case of an action prosecuted by the assignee of a chose in action, to make the assignor defendant,' after a demand pursuant to section 119 of the Code ; but it is difficult to see how an assignor, who has absolutely transferred his interest, can, under ordinary cir- cumstances, be a proper party to an action." It is clear that he could not join as plaintiff, because he is not the real party in interest ; and, therefore, he could not properly be made [*157] defendant by virtue *of section 119. It was, indeed, a general rule in equity that the assignor of a chose in action was a proper party defendant, in a suit by the assignee in cases where the assignment was absolute and unconditional. Where the assignment was not absolute or unconditional, or its extent or validity was denied, he was not only a proper but a neces- sary party ; and the more ancient rule, it would seem, required the assignor to be a party in all cases, though it was subsequently varied so as to make him a proper, and not a necessary, party, where the assignment was absolute." These rules were generally recognized and followed in the equity system of our own State before the Code. Thus, the assignee was not permitted to sue in equity in the name of the assignor, but the action must be pros- ecuted by the assignee, the real party in interest.* It was not necessary in an action for relief, and not for discovery, where all the equitable interest had been assigned over to make the assignor a party," and, indeed, where there had been such absolute and unconditional assignment, it seems he was not regarded even as a proper party. "Where the assignee has the whole equitable interest in himself," says the chancellor, in Miller v. Bear^ " so that nothing remains to be done by the assignor, who has part- ed with his entire interest in the property, I see no benefit which can result to any person by making him a party." ' But ' 11 Leg. Obs. 116. Rogers v. Traders' Ins. Co., 6 id. Note to § 111 Code, Voorliies' ed. 583. ' [Johnston v. Bennett, 5 Abb. N. S. « Whitney v. McEinney, 7 Jobns. Ch. 831.] 144 ; Ward v. Van SoMelen, 2 Paige, * Story's Eq.Pl„§ 153. 389. » Meld V. Maghee, 5 Paige, 539 ; '3 Paige, 466. 116 PARTIES TO THE ACTION. [CH. II. [*158J *if the assignment was not absolute, or if any interest remained in the assignor, as where a mortgage was assigned as mere security, or where but a part of the mortgage debt was assigned, the assignor became a necessary party to the suit.' These rules, I apprehend, are fully applicable to the Code, with the exceptions, perhaps, that, under the present system, the abso- lute and unconditional assignor of a chose in action, who has parted with all his interest, is not only an unnecessary party, but is not even a proper party to the action ; and, if joined as defend- ant, he might for that cause demur to the complaint. The reason assigned in the books on equity pleading for allowing him to be made a party was, that his " legal right might be bound by a decree of the court ; " for the distinction was taken, that though the assignee was the equitcthle and heneficial owner, yet the legal right remained in the assignor ; " or, as it is better expressed by the chancellor in Ward v. Yam, BohJcelen j" " The reason why it was formerly considered necessary to make the assignor of a chose in action a party to a bill in equity brought by the assignee, I apprehend, must have been that courts of law did not sanction and protect such assignments, considering them a species of main- tenance. And the assignor having the legal title or interest in the thing assigned, he might sustain an action at law thereon, not- withstanding a decree in equity to which he was not a [*159] party." That *is to say, he was allowed to be a party only to bar his right of action at law. If the reason had long ceased before the Code, it has doubly ceased since. There is now no siich thing as a legal, as contradistinguished from an equitable title or interest. The action must be prosecuted in the name of the real party in interest. And if an assignor, having no interest, not even what was formerly a legal right, be made a party, I see no reason why he cannot take the objection if he sees fit to do so. It is scarcely necessary to notice here the provision of section 119, which has been spoken of, as relating to parties plaintiff, in the last preceding section of this work. So far as it concerns de- ' Christie v. Eerrick, 1 Barb. Ch. 255. » 2 Paige, 295. ' Story's Eq. PI., § 153 ; Edw. on Parties. SEC. III. J OP PAETIES DEPENDANT. 117 fendants, it requires those who are " united in interest " to join as parties; but if the consent of any one who should have been joined as plaintiff cannot be obtained, he may be made a defend- ant, the reason thereof being stated in the complaint. This is but a legislative enactment of the former equity rule. The prac- tice under it was intimated in Tooker v. Oakley^ to be, that the proper course, in the first place, was to institute the suit in the names of all the parties, as, for example, in the case of executors and administrators, to join them all as complainants, and, if either of them declined to have the suit prosecuted, then to obtain leave to have him made defendant, stating the reason there- [*160] of in the amended bill. So, * too, in regard to the other clause of the section, allowing one or more to sue or defend for the benefit of the whole, where the parties are very numerous, and it may be impracticable to bring them all before the court, it is an enactment of the former equity rule, as has been remarked and more fully explained in the preceding section, in regard to parties plaintiff. It may be added that in respect to this whole section it has been thought, on high authority, to be applicable only to actions which formerly were of an equitable nature. " I incline very strongly to the opinion," says Justice DuEE in Habicht v. Pemierton,^ "that section 119 of the Code ought to be construed as merely re-enacting the rules that other- wise m.ight have been held to be abolished, which, previously to the adoption of the Code, prevailed in courts of equity, and, con- sequently, that it is to suits equitable in their nature that the provisions in this section should still be exclusively applied." In actions formerly classed as legal. In this class of actions it cannot, as a general thing, be a difficult matter to determine who are proper parties defendant. The old rules of pleading are, in the main, applicable. There are, however, some exceptions. Thus, one partner, or tenant in common, could not sue his co- partner or co-tenant at law; nor could a cestui qtoe trust sue his trustee. The remedy was in equity." Now, by the Code, the ' 10 Paige, 388. See ante, mcvrg. p. '1 Chitty's PI. 34, 38; ante, marg.p. 139, 134, 158. 158. = 4 Sandf. S. C. 657 ; ante, marg. p. 153. 118 PABTIES TO THE ACTION. [CH. II. same form of action is adopted in all cases, and a copartner or co-tenant may be made a defendant, as a trustee may, to answer his cestui que trust. [*161] *In an action on contract, where there are several parties, if the contract be joint, they must all be defendants,' even if one of them have a certificate of bankruptcy," [or be an infant,^ or the claim as to one be barred by the statute of limitations.*] If one be dead the survivors are the proper defendants.' In the well- considered case of Bridge v. Payson," in the New York superior court, it was held, after consultation by all the judges of that court, that the Code had made no change in respect to the rules govern- ing parties defendant in an action on contract. Now, as before the Code, partners, as well as other joint debtors, must all be sued, and the failure to join one partner, or joint debtor, with his co- partner or joint debtor, as defendant, was a valid defense, and might be set up in the answer. In that case section 122 had been relied upon as having established a different rule, by allow- ing the court to determine any controversy between the parties before it, when it can be done without prejudice to the rights of others, etc. But the court refused to adopt this construction, or to relax, in the slightest degree, the well-settled rules of the com- mon law in relation to parties defendant to actions on contract. [The superior court holds that a dormant partner must be joined as a party plaintiff;' but we do not think the case good law. If credit be given to A without notice that B is also interested in the purchase, B is not a necessary party.'] It may be added, in reference to the section last cited, that it has been held," not to authorize a person, not a party, though having an interest, to be made a party, on his own application, to an action on contract, express or implied, for the recovery of money. But section 118, says the commissioners of the Code, [*162] will enable a plaintiff' to exhaust, in one suit, *his remedy, against a surviving partner and the representative of a ' 1 Chitty's PI. 41. ' 15 Wend. 318. 2 4 Taunt. 178. « 5 Sand. S. C. 310. ' Slocum V. Hooker, 13 Barb. 563 ; ' Seeor v. Keller, 4 Duer, 416. Shepherd v. Qr earns, 1 N. Y. Leg. Obs. ' Brown v. Birdsall, 29 Barb. 549 281. ^Judd V. Toung, 7 How. Pr. 79 <* Hyde v. Van Yalhenburgh, 1 Daly, [but see Craig v. Wa^d, 2 Trans. App. 416. See Moak's note to Clarke's Cb. 381]. \Z^,m 4 How. Pr. 48 ; 10 Barb. S. C. 638 ; ■'3 R. S. 304, 8 4 ; 2 Edm. St. 312. 5 Sand. S. C. 609. The same has been held at cii'cuit, [' Nichols V. Michael, 23 N. Y. 264; since the Code; \^Ames v. Harper, 48 Ellis V. Lersner, 48 Barb. 5:3!) ; Eoss v. Barb. 57, before amendment of § 118.] Gassidy, 37 How. 416, overruling Roh- ' 2 R. S. 341, § 17, 12 Wend. 56""1, 562, crU V. Raadel, 3 Sandf. 707, and other 25 id. 424. cases.] ^ Code, § 118; Aheel v. Van Gelder. ^ Haskins v. Kelly, 1 Abb. N. S. 63, 36 N. Y. 513. SEC. III. J OF PARTIES DEFENDANT. 131 person claiming title, where there was an actual occupant, and not at tlie option of the plaintiff.' The same rule, allowing a landlord to come in on his oion ap- plication and defend in an action of ejectment against a tenant, it has been held, prevails under the Code." [*178] *A tenant in common, not in possession, is not a neces- sary party to an action of ejectment.^ [*179] [It has been held, under the Code, that parties occupying different rooms in the same house may be proceeded against jointly by the general owner ;' otherwise if they occupy distinct portions of the premises in severalty," and expressly take the objection by answer or demurrer."] In aotiov, to foreclose a mortgage the owner of the [*180] * equity of redemption is a necessary party.' But the mortgagor, though he is personally liable for the debt, is only a proper and not a necessary party to a bill of foreclosure against his grantee, and the grantee cannot object that the mort- gagor is not a j)arty.° The assignee of a bond and mortgage may make the assignor, who guaranteed their collection, a party, in order to obtain a judgment against him for the deficiency." And where a mortgage is assigned as a mere security for a debt, or where but a part of the mortgage debt is assigned, the assignor is a necessary party to a complaint filed to foreclose the mortgage." But if the assignment be absolute and unconditional, the same rules apply as in the case of other assignments. The • assignor is not a necessary, and, perhaps, not a proper, party to the suit." One claiming adversely to the mortgagor cannot be made a party for the purpose of trying the title.'^ On a bill to foreclose a mortgage, all subsequent incumbrancers existing at the com- mencement of the suit should be made parties;" and where ' Shamr v. mOraw, 13 Wend. 558. ' 10 Paige, 409. = Godfrey v. Townsend, 8 How. Pr. » 6 Paige, 343. 398. » 9 Paige, 90. » 14 Barb. S. C. 118. ^"[Christie v. Herrick, 1 Barb. Ch. 255 , ■* \Foagate Y.Herkimer Manufacturing Kittle v. Van Dyck, 3 Leg. Obs. 126.] and Hydraulic Oo., 13 N. Y. 580, affirm- " See ante, inarg. pp. 157, 158, 159. ing 12 Barb. 352, on second appeal ; '" 6 Paige, 635, 2 Barb. S. C. 20, 3 contra to S. C. on first appeal, 9 id. Barb. Oh. 438 ; [see Moak's note to 288.] Clarke's Ch. , marg. p. 252.] ' \_DiUaye v. Wilson, 43 Barb. 261, 265 ; i" 4 Johns. Ch. 605, 3 id. 459, Act of see 9 id, 288.] 1844, amending act of 1840, 1 Barb, " {Dillaye v. Wilson, 43 Barb. 261 ; Ch. 490. Ames V. Harper, 48 id. 57.] 132 PARTIES TO THE ACTION". [OH. II. legacies are charged upon the land, legatees are necessary parties, though the mortgage is subsequent to the charge.' It is not necessary or proper to make the executor of a mortgagor [*181] a party defendant. The party * in interest is the heir.' [The representative should clearly be made a defendant, if a decree for a deficiency is sought. It is true the statute pro- vides that the heir or devisee shall pay it." This, however, simply settles the rule of liability as between heir and executor, and does not deprive the mortgagor of his right to a decree over against the executor.*] But the personal representative of a mortgagor should be a party to a bill for the execution of a trust for sale by way of mortgage; an account cannot be taken in his absence.' And, in general, all persons having an interest in the equity of redemption should be made parties.' And whether the incum- brancers are prior or subsequent to the mortgage, they are proper if not indispensable parties to a complaint for foreclosure.' In an action for the partition of Icmds. It was held, previous to the Revised Statutes, that neither a mortgage nor judgment creditor was a proper party to a partition suit, and their rights could not be affected by a sale.' But the Revised Statutes have altered the rule, and have authorized the court to decree a sale which will give the purchaser a perfect title, discharged from all liens and incumbrances. By statute it is not necessary in the first instance to make a creditor, having a lien on the premises by judgment, decree, mortgage or otherwise, a party to the proceed- ings. And this provision has been recognized as applicable to a complaint for partition under the Code." But the complainants may, at their election, make every creditor, having a specific lien on the undivided estate or interest of any of the parties by mortgage, devise or otherwise, a party to the proceedings." Every person entitled to dower, if it has not been admeasured, [*182] must also be a party." *If the wife does not join with ' 6 Johns. Cli. 450. ' Id. 3 Jolins. Cli. 459 [see Moak's ' Edw. on Parties, 93, 1 Jolins. Ch. notes to Clarke's Cli. marg. p. 353, and 353. cases cited to the contrary]. 'i 1 R. S. 749, § 4, 1 Edm. Stat. 700. » 3 Johns. Ch. 130; 1 Paige, 469. ■■ Bobinson v. Mohinson, 1 Lans. 117 ; ' Bogardus v. Parker and otliers, 7 Wright v. Holhrook, 33 N. T. 587, 3 How. Pr. 305. Rob. 587. i» 3 R. S. 318, ma/rg. p., ^8 8, 9, 3 = Edw. on Parties, 97. Paige, 37. • Story's Bq. PI. 17. " Id. SEC. III.J OP PARTIES DEFENDANT. 133 her husband in such action, the objection may be taken by answer if it does not appear on the face of the complaint.' But it is said that, in such action by the wife for her separate property, the husband is iiot a proper party plaintiff." [The safer course is for the wife, in an action for partition, to make her husband a party defendant. It is doubtful whether he ' is a oiecessary pai'ty, but, as it is uncertain how the court will decide as to the husband's rights as tenant by the curtesy, it is better to make him a defendant.] Tenants in common (unless owners unknown) must all be parties, otherwise a partition cannot be decreed." Where a person has parted with his title, and no relief is prayed for or against him, he is not a proper party to an action for the partition of real estate." Before the Code it was held, that, where the title was denied, or not clearly established, a bill for partition could not be sustained ; but the bill would be retained to give the plaintiff an opportunity of establishing his title at law.' [This rule has not been abrogated by the Code."] 1 8 How. Pr. 456 [1 Story's Eq. Jur., ' 1 Johns. Ch. 14. g§ 655-657] . 6 Florence v. Hopkins, 46 N. Y. 182. ' 8 How. Pr. 389 [but see Ackley v. As to wlio are proper parties in Ta/rbox,31 N.Y. 564; Palmer v. Davis, actions for other equitable or specific 38 id. 243] . relief, see Story's Eq. Pl„ Lube's PI., 3 2 Barb. Ch. 398. Mitf. Eq. PL, Edw. on Parties, Barb. * 7 Barb. 235, 3 Barb. Ch. 407. on Parties, etc. [*183] *0H AFTER 111. OF THE JOINDER OP ACTIONS. The Code provides for the joinder of actions as follows : " The plaintiff may unite in the same c.omplaint several causes of action, whether they be such as have been heretofore denominated legal or equitable, or both, where they all arise out of: "1. The same transaction or transactions connected with the same subject of action ; " 2. Contract, express or implied ; or, "3. Injuries with or without force, to persons and property, or either; or, "4. Injuries to character; or, " 5. Claims to recover real property, with or without damages, for the withholding thereof, and the rents and profits of the same ; or, " 6. Claims to recover personal property, with or without dam- ages, for the withholding thereof; or, , " 7. Claims against a trustee, by virtue of a contract, or by opera- tion of law. " 8. But the causes of action, so united, must all belong to one of these classes ; and, except in actions for the foreclosure of mortgages, must affect all the parties to the action, and not require different places of trial, and must be sejparately stated. " 9. In actions to foreclose mortgages the court shall have power to adjudge and direct the payment by the mortgagor of any residue of the mortgage debt that may remain unsatisfied after a sale of the mortgaged premises, in cases in which the mortgagor shall be per- sonally liable for the debt secured by such mortgage ; and, if the mortgage debt be secured by the covenant or obligation of any per- son other than the mortgagor, the plaintiff may make such person a party to the action, and the court may adjudge payment of the residue of such debt remaining unsatisfied after a sale of the mort- gaged premises against such other person, and may enforce such judgment as in other cases. "^ The cjnflicting decisions, made before the amendments [*184] *in respect to the joining of causes of action for both legal and equitable relief, have already been noticed." The amendments have settled the practice in this respect, by provid- ing, in terms, that claims for both legal and equitable relief may be united in the same action. In Alger v. Scoville,^ it was said, 1 Code, § 167. 8 6 How. Pr. 131. * Ante, chap. I, § 3. CH. III.] JOINDEK OF ACTIONS. 135 chat an action could not be maintained on a contract against one defendant, united with a cause of action against another defend- ant, as trustee ; as, for example, a claim against one defendant for a money demand and interest, with a claim for the removal of another defendant as assignee. It was also held a sufficient ground for demurrer, that the complaint contained distinct causes of action, in some of which the defendants were not interested. The amendments contained in the first subdivision of the above section, it has been supposed, was designed to reach such a case, by providing that causes of action, whether legal or equitable, or both, might be joined where they all arise out of " tlie same transaction or transactions connected with the same svhject of action •" thus authorizing the joinder of a claim for the recovery of a demand on a contract, with a claim to satisfy the same de- mand out of property in the hands of an assignee of the debtor, he being made a party defendant for that purpose. This has been so held, in effect, in Mott and others v. Dunn^ at special term. [*185] *It must be admitted that the language used in this clause of the section is somewhat vague and indefinite, and, in the absence of judicial interpretation, it would be difficult to determine its true signification. Is the clause to be construed as the controlling clause of the section, and as qualifying all the rest, so as to allow distinct causes of action : such, for example, as a contract, and a claim to recover personal property, to be joined, provided they both or all arise out of the " same transaction or transactions, connected with the same subject of action ? " This might seem to be the intention, from the fact that the section, before the amendment, provided "that causes of action so united must all belong to one^only of these classes " — and by the amend- ment the word only is omitted. Under such a construction, if A unlawfully take possession of the house and furniture of B, and withholds the same, B might be allowed to unite an action to recover the possession of the personal property, with an action to recover the real property (claiming his general damages for with- holding both), and an action for injury done to the personal prop- erty and freehold. ' 10 How. Pr. 335. See ante, marg. p. 153. 136 JOISDEK OF ACTIONS. [CH. III. Or was the amendment intended even to go furtlier, [*186] and permit a plaintiff to unite distinct causes *of action (arising out of the " same transaction," etc.), against dif- ferent defendants having different rights, interests, and independ- ent and separate defenses ? I think it may be safely assumed that the legislsrture never intended, by the amendment in question, to give this section any such sweeping and indefinite application. This would seem to be apparent from the very nature of things, independent of any judicial construction. If, however, a doubt had existed on the subject, it would seem to me to be removed by the decisions made under the section, especially since the amendment. Thus, in Smith v. Hallock^ it was held, that the first clause of the section, " the same transaction or transactions connected with the same subject of action," had reference to such causes of action as are consistent with each other, not such as are contradictory ; and it was accordingly held, that the plaintifiF could not join in his complaint a claim to recover the possession of real estate and damages for withholding the same, with a claim for damages for obstructing and injuring the plaintiff in the use of such property. And, in the still later case of Hulce v. Thoinpson' it was held, that this section did not authorize the joining of a claim in eject- ment for a house and door-yard, with a claim in trespass for cut- ting grass and destroying fences on the farm. In that case, how- ever, the decision was placed upon the ground that the causes of action mentioned in the complaint did not arise out of the same transaction, nor were they connected vsdth the same subject [*187] of *action. " The claim in ejectment," says Mr. Justice Ceippen', " arises from the defendant refusing to surrender to the plaintiflT the possession of the house and door-yard. This, then, as a transaction, has no connection whatever with the tres- j)asses of the defendant in cutting the plaintiff's grass, destroying his fences, etc. ; they are entirely distinct and unconnected trans- actions, having no affinity or relation to each other." And again, referring to the various subdivisions of the section : " The causes of action that may be united in the same action must all belong to one of the classes contained in the above-quoted sections of the Code. > 8 How. Pr. 73. ' 9 How. Pr. 113. CH. III. J JOINDER OF ACTIONS. 137 Each subdivision, it is fair to presume, was intended to provide for a class of cases not included in either of the other subdivisions." The recent case of Jerolimon v. Cohen^' in the ISTew York superior court, is a case in point, to show the application of the rule, that causes of action may be joined, whether legal or equi- table, when they all arise out of " the same transaction," etc. [*188] In that case it was adjudged that a complaint might *claim to recover damages for an alleged breach of a written agreement, and at the same time averring that the agreement was erroneous in form through the fraud of the defendant, might seek to have it reformed, so as to have it correspond with the real con- tract. " There is, in reality," says the court, " but one controversy which it is desirable should be settled in a single action, and it cannot be necessary, before relief in form can be asked, to com- mence a prior and independent suit to reform the written contract. Unless the fraud be proved, so that the written agreement ceases to be a barrier to proof of the contract, as it is averred to have been, the plaintiffs will fail in their action. Whether the mat- ters alleged properly constitute a single cause of action, or sub- stantially separate causes of action, yet they all arise out of the same transaction or transactions connected with the same subject of action. Such causes of action, where several exist, although, as in the present cases, one may be legal and another equitable, may now be united in the same complaint." And in the still more recent case of Spier et al. v. Robinson et al.' it was held, that a claim for a specific performance of a con- tract to convey land, and for the payment of a reasonable sum for the use and possession thereof, were not two distinct causes of action, and might be united. This was put upon the equity doc- trine that justice required that the plaintiff should have full com- ■ Duer Sup. C. 639. » 9 How. Pr. 336. Note. —In the late case of Lamoreaux v. The Atlantic MutvM Insurance Company, re- ported In the New York Times, of September 3B, 1854, the complainant claimed to recover damages for the sum of $700, on a policy of insurance, and also prayed that, " it the same be necessary, said policy be reformed in such manner as fully and clearly to express the intention and agreement of the parties." The complaint did not state what words had been omitted to be written in the policy, nor what precise reformation was sought. On a motion to malie the complaint more definite and certain, Bosworth. J., with the concurrence of DtrER and Hoffman, held the statement defective, but gave the plaintiff liberty to amend, as he might be advised, and, in default of his amending, ordered the words " that if the same be necessary" to be struck out. 18 138 JOINDER OF ACTIONS. [CH. III. pensation for the wrong done him, namely, a deed for the [*189] land, *and payment of the rents and profits, in the same action. These principles by no means conflict with the doctrines laid down in the cases of Smith v. Halloch and Suloe v. Thompson, just cited. They seem to establish the proposition that the sub- division Tinder discussion was designed to apply, generally, to that class of cases heretofore denominated equitable, and to allow such a claim to be joined with a legal claim when both grow out of " the same transaction, connected with the same subject of action." It will be evident on a moment's reflection that it can have but a limited application, in common-law cases. Thus, in the case of Hulce v. Thompson, swpra, the " subject of the action," properly, was the possession of the real estate claimed, that is, the house and lot ; and the right of action was based upon the unlawful with- holding ; and an action for trespass to the land, though perhaps arising out of the same transaction, the unlawful withholding was not " connected with the same subject of action," i. e., the posses- sion of the land. Precisely the same rule would hold good in other cases, and has been applied, as for example, in Furniss v. Brown^ wherein the plain tift' sought to obtain possession of a steamboat, of which he claimed to be the owner under a contract with the defendant, which was set forth in the complaint, and in the same complaint claimed money damages for a breach of the contract, the joinder was held bad on demurrer. Though [*190] perhaps the cause of action might be *said to arise out of " the same transaction," namely, the contract, yet the one was by no means "connected with the same subject of action " embraced in the other, and, therefore, the section did not aiithor- ize their joinder in the same complaint. And in the still later case of Colwell v. The New Torh and Erie Railroad Co.^ a similar rule was applied, it being held, that a claim for damages against the defendant, a railroad company, for wrongful taking and injury to cattle could not be joined with a claim against the company, founded on an agreement to carry the cattle on the railroad, or a claim against such company on its liability as a com- mon carrier. An action against a common carrier, it was said, ' 18 How. Pr. 191. » 9 How. Pr. 313. CH. III.] JOINDEE OF ACTIONS. 139 founded on the contract, conld not be joined with an action against him for injuries to personal property. The causes of ac tion belonged to different subdivisions of section 16Y of the Code, and did not fall under the first subdivision of that section. But a claim strictly legal, as to recover an alleged balance due on a building contract, and for extra work and material, and for dam- ages sustained by reason of being hindered and delayed in the completion of the work, may be joined with an equitable claim to set aside for fraud and undue influence an award made by an arbitrator in relation to certain disputes growing out of the same contract, as in See and others v. Partridge.^ Such claims are regarded as arising out of "the same transaction" and "con- nected with the same subject of action ; " and on the same [*191] principle, it would seem, with that *recognized in Jeroli- mon V. Cohen, and similar cases above noticed. [The following actions may be joined : Goods sold and money had and received, although the money was received for property wrongfully taken by defendant if plaintiff elect to waive the tort, as he may do ; ° malicious prosecution, libel and slander ; ^ for the action of malicious prosecution is founded upon the injury to character,* so that a recovery therefor bars an action for slander growing out of it," and hes, although no arrest be made or injury to the person sustained;" the arrest, if any, is only one of the items of damages.' It is otherwise with slander and false imprisonment." Assault and battery and false imprisonment may be joined ; " so, it seems, false imprisonment and malicious prosecution ; " injuries to person and to property ; " for cutting and removing timber, and for removing firewood already cut, and converting it, followed by averments of injury, to the inheritance ' 3 Duer, 463. accusation ; Bockwell v. Brown, 36 N. 2 Hawk V. Thorn, 54 Barb. 164 ; see Y. 207. post, marg. p. 249. * Panglurn v. Bull, 1 Wend. 345 3 Watson V. Hazard, 3 Code R. 318 ; 1 Hill, on Torts (2d ed.) 479, note. Martin v. Mattison, 8 Abb. 3, affirmed, ' Stapp v. Barton, Dudley (Ga.) 176. 10 id. 246, note ; Hull v. Vreeland, » Add. on Torts (8d Eng. ed.) 963 ; 18 id, 182, 43 Barb. 543 (see post, (?«es< v. Far?-e7i,9 Excli. 379 ; Hender- marg. p. 194). son v. Jackson, 9 Abb, N. S. 393. " Hilliard on Torts (2d ed.) 478. » Sheldon v. Lake, 9 Abb, N, S, 306. ^ Shelden v. Carpenter, 4 N. Y. 579 ; "• Henderson v. Jackson, 2 Sweeny, Bockwell V. Brown, 86 id. 207; not 324. so, liowever, for different utterances, " Code, § 167, subd. 3 ; Howev.Peck- althougb alluding to the same general ham, 10 Barb. 656. 140 JOINDEK OP ACTIONS. [OH. III. and reversionary interest of plaintiff, if it affect all the defend- ants ; ' a claim for damages for not printing and binding a work, and for injuries to the stereotype plates while in defendant's pos- session for use in such printing ; ■' in an action by the plaintiff as assignor of a mortgage assigned to defendant as collateral security for the payment of plaintiff's promissory notes ; a claim for the surplus arising on the sale of the mortgaged premises, and for the surrender of the plaintiff's notes, may be joined ; ' so, also, for legal and equitable relief, when consistent ; as to reform a contract and enforce it ; ' but an action cannot, on the trial, be sustained on the theory of a tort if the complaint be based upon a contract.' An action against a judgment debtor and different grantees, at various times, if the transfers were made pursuant to a general scheme to defraud the debtor's creditors.' So a transferee without consideration may be joined with plaintiff"'s assignee, in an action to set aside the sale as fraudulent.' The plaintiff may join an equitable action for dower,° with a claim for damages for withhold- ing the same," although a portion only of the defendants have received the rents and profits." The consignee of goods may join with an action against a carrier for the loss, waste or wrong- ful conversion of goods, a claim to recover back a sum over- paid by plaintiffs to defendants on account of the goods." So against a constable (1) for levying on sufficient goods; (2) neglecting to return the execution ; (3) for keeping and detain- ing the money received on the same." So a claim for detaining property, and wrongfully and negligently injuring it during the 1 Code, § 167, subd. 3 ; Rodgera v. ' Wade v. Musher, 4 Bosw. 537 ; Ver- Jones, 11 Barb. 595. meule v. Beck, 15 How. 333. ^ Badger v. Benedict, 4 Abb. 176, 1 ' Townsend v. Townsend, 3 Sandf . Hilt. 414. 711 ; Brown v. Brown, 31 How. 498, 4 ' Galhoonv. Bank of Utica,7 N.Y.4S6. Rob. 700, clearly overruling the doc- * Oridley v. Oridley, 24 N. Y. 136, trine laid down in Wood v. Glute, 2 and autborities cited ; New York Ice N. Y. Leg. Obs. 407, by the Assistant Co. V. Northwestern, etc., 23 N. Y. 375, Vice Chancellor. 12 Abb. 414, 21 How. 296 ; Barlow v. » Van Name v. Van Name, 23 Scott, 24 N. Y. 40 ; McKeon v. See, 4 How. 247 ; Code, § 167, subd. 5 ; Bo Rob. 465. gardus v. Parke, 7 How. 305, but see ' Lewis V. Mott, 36 N. Y. 395. Tompkins v. White, 8 How. 520. « Reid V. Stryker, 13 Abb. 47, Court >»ld. Vandewort v. Gould, 36 N. T, of Appeals, reversing 6 Abb. 109 ; Law- 646. rence v. The Bank, etc., 35 N. Y. 324; " Adams v. Bissdl, 38 Barb. 382. Bank, etc., v. Suydam, 6 How. 379. " Moore v. Smith, 10 How. 361. 381, 383. OH. III. J JOINDER OF ACTIONS. 141 detention.' So for goods sold, and to rescind a contract of sale, and recover the price immediately on the ground that the credit was fraudulently procured.' Several causes of action can be united in one complaint only where each cause affects all the parties to the action ; ^ and they must be in favor of all the plaintiffs and against all the defend- ants, and must belong to the same class, although they need not affect all the parties equally* A complaint in partition is not bad because it sets up a claim of one defendant for a specific lien, and of another defendant for moneys paid to extinguish liens, and asks an account to be taken of such advances.' So a claim for specific performance, and one for the use of the land, may be joined.' (See ante, marg.p. 153, as to what parties may join or be joined.) A complaint may embrace both legal and equitable causes of action if otherwise properly joined. The legal causes may be tried by a jury, and the equitable ones by the court.' Although it has recently been held that in such case all the issues must be tried by a jury.* So, in an action by a receiver, the subject of the action being the restitution of the judgment debtor's property, the plaintiff may vmite all the different claims which he has upon that subject of action against defendant, and set forth different transactions out of which his right to restitution arises, although, to reach that result in some instances, it will be necessary to set aside transfers void for usury" — but the receiver of an insolvent corporation must sue its stockholders separately upon their unpaid subscription ; " otherwise, to enforce the liability of stockholders to creditors of the corporation, and to restrain the creditors from prosecuting the stockholders." The following cannot be joined : Assault and battery and slan- der " — for one involves an injury to the person, and the other to ' Smith V. Orser, 43 Barb. 187. overruling House v. Cooper, 30 Barb ' Roth V, Palmer, 37 Barb. 653 ; 157, 16 How. S93, so far as tbis point Wigandv. Sichel, 83 How. 174, 3 Keyes, was involved. 120 ; Camplell v. Wright, 31 How. 9. ' People v. Albany, etc., 5 Lans. 35. ' Lexington, etc., v. Goodman, 15 ' Palen v. Bushnell, 46 Barb. 34, re- How. 85, 5 Abb. 493, 25 Barb. 469. versing, 18 Abb. 301. * Vermeule v. Beck, 15 How. 333 ; "° Calkins v. Atkinsoji, 3 Lana. 13. Brady v. Weeks, 3 Barb. 157. " Calkins v. Atkinson, 8 Lans. 13 ; ' Bogardus v. Parker, 7 How. 305. Story v. Furman, 35 N. Y. 314. « Spier V. Robinson, 9 How. 335. " Anderson v. HUl, 53 Barb. 338, ' Dams v. Morris, 36 N. Y. 569, overruling Brewer v. Temple, 15 How affirming 35 Barb. 337, and in effect 286. 142 JOINDER OF ACTIONS. [CH. III. character.' It seems a claim against a broker for damages for fraudulently selling land, and one against the purchaser for a reconveyance or accounting ; " although this may be doubted/ for the right of action grows out of the wrongful transfer, and a recon- veyance would only be one of the alternative methods of relief to which the plaintiff may, in a certain contingency, become entitled. A contract by the testator and one by his executor cannot be joined ;* nor can an action for an absolute divorce on the ground of adultery, and for a limited divorce on account of cruelty, or vice versa.'' In an action for an absolute divorce the plaintiff may properly incorporate in the complaint allegations that he or she has not voluntarily cohabited with the defendant since the discov- ery of the adultery ; that five years have not elapsed since the discovery thereof, etc., etc' Cruel treatment after condonation of adultery revives it.' Cases may arise where the right to a divorce on account of the adultery, made the basis of the action, has been condoned and revived by cruel treatment. In such cases the plaintiff cannot truthfully make the required allegations and verify them. It would be proper to allege the adultery, the subsequent cohabitation, condonation, etc., and then set out the facts showing that since the same the defendant had been guilty of cruel and inhuman treatment ; that the condition on which the condonation was granted has not been complied with. The cruelty is not in such case a cause of action, and a judgment deny- ing an absolute divoi'ce to the plaintiff' would not bar an action for a limited divorce on account of the same acts of cruelty. Although the plaintiff may waive a tort and sue for goods sold and delivered, money had and received, etc., he cannot make the tort the gravamen of an action, and join with it an action for money had and received ;' nor can he join a cause of action in tort with one upon an implied assumpsit ;' nor an action upon a > Anderson v. Hill, 53 Barb. 238 ; Barb. 9 ; id. 37 How. 6 ; Griffin v. Orif- Code, § 167, subds. 3, 4, fin, 23 id. 183. ' Gardner v. Ogden, 23 N. Y. 337. « Sup. Ct. Rule (1870), No. 87, 3 R. S. 2 Reed v. Stryker, 13 Abb, 47; Law- 145, § 43, 3 Edm. St. 151 ; Myers v. rence v. The Bank, etc., 35 N. Y. 324, Myers, 41 Barb, 114 ; Zorkowski y. Zor- •> Benjamin v. Taylor, 13 Barb, 338 ; kowski, 37 How, 37. Ferrin v. Myriek, 41 N. Y. 815, revers- ■" 3 Bisb. on Mar. and Div. (4tli ed.), ing, 53 Barb. 76, §§ 53-66. ' Mcintosh V. Mcintosh, 12 How, 389 ; « Qgj,^ y Dows, 9 Barb. 330 ; Boyes Henry v, Henry, 17 Abb. 411 ; id, 40 v, Tieclman, 34 Ind. 72. 9 Hunter v. Powell, 15 How, 321. CH. III.] JOINDER OF ACTIONS. 143 warranty, and for fraud in regard to the same transaction ;' and, although the plaintiff may join a right of action for rents and profits of land with one for its recovery, he cannot join an action for damages to lands with one for its recovery ;" nor a claim for damages in obstructing plaintiff in the use of land with one for its recovery ;° nor for a penalty in consequence of the doing of an act, and for an injunction to restrain the doing of the act, as from erectiug a wooden building forbidden by fire laws;* nor for damages for converting personal property, and for a redelivery thereof;' nor trespass and ejectment ;" nor for a breach of a con- tract to convey real estate to plaintiff, and an assault and battery upon plaintiff, and forcibly taking the contract from him ;' nor against a husband for his wrongful act, and also for a separate wrongful act of his wife ;' nor by husband and wife in such case.' But if the wrong, as, for instance, slander, be the result of a con- spiracy by two, they may be jointly sued, though husband and wife," although Mr. Townsbnd lays down the rule that the action should be for a conspiracy to defame." An action for money re- ceived and one for false imprisonment cannot be joined, although it be alleged they both arose out of the same transaction. '" A plaintiff cannot unite causes of action to recover specific per- sonal property and a demand for damages for a breach of contract." A cause of action against A, for obstructing the plaintiff's right of way, and against B for continuing it, cannot be joined." A complaint cannot contain distinct causes of action in which only some of the defendants are interested." If two causes of action be improperly joined, and it so appear upon the face of the complaint, unless the defendant demur for a misjoinder he cannot ■ ' Bweet V. Ingerson, 13 How. 331 ; 653 ; Townsend's Libel and Slander, § Springsteed v. Lawson, 14, Abb. 328. 118 ; 3 Conw. Rob. Pr. 123, 124. ' Hotchkiss V. Auburn, etc., 36 Barb. ' Mann v. Marsh, 35 Barb. 68, 21 600. How. 872. 3 Smith V. Hallock, 8 How. 78. '" 3 Conw. Rob. Pr. 123, 124 ; Patten * Lamport v. Abbott, 12 How. 340 ; v. Qurney, 17 Mass. 185, 187. HulceY. Thorapson, ^ M. HZ. "Townsend's Slander and Libel, §118. = Maxwell v. Farnam, 7 How. 236 ; " Fli/nn v. Bailey, 50 Barb. 73.'' Spalding v. Spalding, 3 id. 297. " Furniss v. Brown, 8 How. 59, 65, ^ Budd V. Bingham, 18 Barb. 494; note. Hulce V. Thompson, 9 How. 113. ^'- Hess v. Buffalo, etc., 29 Barb. 391. ' EhU V. Haller, 6 Bosw. 661, 10 Abb. ^^ Alger v. Scomll, 6 How. 131 ; Brady 287. V. Weeks, 3 Barb. 157 ; Wells v. Jewett, 6 Blalone v. Stilwe.^, 15 Abb. 431 ; 11 How. 343 ; Warth v. Radde, 28 id. Forsyth v. Edmiston, 3 id. 431, 5 Duer, 330, 18 Abb. 396. 144 JOINDER OF AOTIONS. [CH. III. take advantage thereof on the trial/ A motion to compel the party to elect upon which cause of action or defense he will rely is addressed to the discretion of the court, and its decision thereon cannot be reviewed on appeal." Final judgment for costs may be awarded against a party for an improper joinder unless he take steps to procure a separation of the causes.' [See ante, rnarg. p. 153, as to what jpwrties may join or be joined.] Though the clause of the section under consideration, therefore, presents some difficulties, and it is no easy matter to define accu- rately its true limits, yet, from the decisions, it certainly appears that, as a general thing, the courts have been disposed to restrict rather than extend its operation. By a careful examination of the subject, in the light of these decisions, we find that the rule as to the joinder of different rights of action (without regard to forrro) in common-law actions at least, has been modified, merely, and not abolished. JSTor is there any thing in the section counte- nancing the idea that a plain tifi" may unite distinct causes of action, though arising out of the same transaction," etc., against different defendants, having different rights, interests and independent and separate defenses. Let us briefly examine this question :' Under the former practice, the joinder of actions was generally considered with reference to two things, namely : first, the join- der of different forms of action ; and, second, of different rights of action. Different forms of action could not, as a general thing, be joined, as an action of assumpsit and debt, or assumpsit and covenant, though both arose upon contract. But if the form of action was the same, the plaintiff might unite as many causes of action in the same declaration as he pleased ; as, for example, debt on a simple contract, with debt on a bond or other speciality. These distinctions, with respect to the form of the [*192] action, are, of course, abrogated by the Code ; and *the only distinction recognized is that which respects different rights of action. These are classified by the Code as set forth in the section above quoted ; and though the classification is essen- tially different from the former system, and allows the plaintiff a much wider latitude in the joinder of causes of action than for ■ Blossom V. Barrett, 37 N. Y. 434. ' Boyes v. Tiedman, 34 Ind. 72. ^ Kerr v. Hayes, 35 N. Y. 331. ■* See ante, mm-g. p. 153. CH. III.] JOINDER OF ACTIONS. 145 inerly, yet, it is said, that subject to this different classification, the rules to determine what causes of action may be joined are not changed.' Different rights of action, therefore, not existing in favor of all the plaintiffs and against all the defendants, cannot be joined, though belonging to one only of the several classes enumerated.'' Thus, in Tomphims dh White v. White c& Rohinson,^ a claim against two defendants to recover the possession of real estate, and damages for the unlawful withhold- ing of the same, and a claim against one of the defendants for moneys received for rents and profits of the premises, for which that defendant was indebted to the plaintiffs, no connection being shown between the alleged withholding of the possession and those rents and profits, were held, on demurrer, to be improperly united in the complaint. And so, too, in the case of Pugsley v. Aiken,* it was held, that the old common-law principle was in force under the Code, that a cause of action against a testator could not be joined with a cause of action against his [*193] executors personally. The rule, it was said, *which au- thorized the uniting of different claims against a trustee, by virtue of a contract, or by operation of law, but did not permit a claim against a trustee personally to be united with a claim against the estate represented by him, had not been changed by the Code. Within this rule a plaintiff now, as formerly, cannot bring a joint action against two, and state in one part of his com- plaint tha,t one of them assaulted and beat him, and in another part that the other defendant took away his goods.' But a plain- tiff may join a demand due him in his own right, with a demand due him as a survivor ; ° though he cannot join a demand in his own right with another due him as executor,' nor can a demand against a defendant, as executor, be united with one against him individually ;° nor can a count on a promise by husband and wife be joined with a count on a promise by the wife dum sola ; ' the general rule being, that the several causes of action should ' Enos V. Thomas, 4 How. Pr. 48. ' 2 Saund. 117 ; 4 T. R. 360. » Be Bidder v. Schermerhorn, 10 "ST. R. 433 ; 5 id. 403 {Stafford \. Barb. S, C. 638. &old, 9 Pick. .533.] 3 8 How. Pr. 520; See, also, 12 Barb. ' 1 T. R. 489 ; 3 id, 659 ; 4 Hill, 492. S. C. 528. 8 4 Sand. Ch. 31 4 14 Barb. S. C. 114. 9 16 Johns. 281. 19 146 JOINDEE OF ACTIONS. [CH. III. all exist in the same right, otherwise they cannot be joined. [A surviving partner may maintain an action in his own name for a debt incurred to the partnership during its existence without setting out the partnership or the death of his copartner or his survivorship ; ' and so if goods be sold a firm,, and one of them dies, assumpsit may be brought against the survivor without notice of the partnership or of the death of one and the survivorship of the other.'' So in an action for the conversion of personal property, brought by tenants in common, if one of the plaintiffs dies pending suit, the action should be continued by the survivors without joining the execu- tor of the deceased plaintiff.^ It has been held otherwise as to real estate.^ but the case is very meagerly reported, and we can see no reason for the distinction ; the statute certainly makes none.' And where the debtor paid the debt to the executor of the de- ceased partner, the court held, that it was no satisfaction to the surviving partner who has the sole right of suing for and recover- ing the moneys due to the company.' The surviving partner is entitled to recover of the representative of a deceased partner the amount he has received in satisfaction of a partnership demand. It is no defense that he is bound ultimately to pay the partner- ship debts if satisfaction cannot be obtained of the survivor. He receives the money in trust for the survivor.' A debt due from the plaintiff as surviving partner may be set off against a debt due from the defendant in his own right.' If the surviving part- ner has no interest in a cause of action, the representatives of a deceased one may maintain an action."] ' Bernard v. Wilcox, 2 Jolins. Cas. 405 ; Lachaise v. Libby, 13 Abb. 6 ; Mc- 374 ; Laclmise v. Libhy, 13 Abb. 6 ; Vean v. Scott, 46 Barb. 383 ; Smith v. Mc Vean v. Scott, 46 Barb. 379 ; 1 Burr. Burrow. 2 Term, 476. Pr. 60 ; Grab. Prac. (1st ed.) 59, 60 ; ^ Bucknam v. Brett, 13 Abb. 119, Smith T. Bnrroio, 2 Term, 476 ; Matter 35 Barb. 596, 22 How. 233. of Miller, 1 Paige, 445 ; Miu-rmj v. * Dyekman v. AUen, 2 How. 17. Mumford, 6 Cow. 441, Anth. N. P. 294 ; ^ 2 R. S. 386, marg. p.,%l,i Edm. St. Case V. Abeel, 1 Paige, 393 ; Egberts 401. Y.Wood, 3 id. 517; Grant v. Slnirler, « Wallace v. Fitzsimmons, 1 Dall. 1 Wend, 148 ; but see Ditchhurn v. 248, 250, Com. Pleas Pliiladelpliia Co. Sprackliii, 5 Esp. 31, which went oflf '' McGarty v. Dixon, 2 Dall. 65, note on tlie ground of variance as to the Supreme Court of Penn. plaintiff being the seller, whereas the ^ French v. Andrade, 6 Term, 582 ; complaint should have alleged, simply. Slipper v. Stidstone, 1 Esp. 48, and see that defendant was indebted to plain- Day's note ; Matter of Miller, 1 Paige, tiff for goods sold and delivered. 445. V. McKiiistry, 1 Johns. Cas. ' Hackett v. Belden, 40 How. 389. CH. Ill] JOINDER or ACTIONS. 147 Before the amendment to the section of the Code, which de- fines wliat causes of action may be joined, it was held, that a claim for surplus money received on a mortgage, given as security for the payment of certain promissorj^ notes, could not be joined in a complaint with a claim fo\mded on a refusal to deliver up the notes alleged to have been paid.' Also, that claims for [*194] injuries to personal property, *and to recover its posses- sion, are substantially different causes of action.'' But the former of these decisions has been reversed by the court of appeals,' the claim being held substantially single. Quere, whether malicious prosecution is not an injury to the person as well as to character, and may not, under subdivision 3, as amended, be joined with an action for assault and battery, tres- pass to property, real or personal, and criminal conversation.'' Criminal conversation with the wife is said to be an in- jury to the person of the husband ;'' and, of course, the three last-mentioned causes of action may be united in the same complaint. Under this subdivision the plaintiff may unite different claims against the same person or persons for every kind of injury to his absolute or relative rights of person or property, except only that class known exclusively as injuries to character. So, too, under the second subdivision, he may unite actions arising on every species of contract, express or implied, sealed or unsealed, in writing, on judgment, or by parol. [*195] Under the fifth subdivision, which authorizes the plain- tiff to unite " claims to recover real property, with or without damages for the withholding thereof, and the rents and proiits of the same," the plaintiff', in an action to recover the pos- session of the land, may recover for the use of the land while the defendant has kept him out of possession ; or, at his option, may recover the land in one action, and afterward bring his action for the rents and profits." The joinder of these different causes of action, however, in all ' Cahoon v. Bank of Utica, 4 How. * Ante, marg. p. 191. Pr. 423 ; 7 id. 134. = 3 Black. Com. 139, 4 How. Pr. 284. '■■ Spalding v. Spalding, 3 How. Pr. ' Limngston v. Tanner, 12 Barb. S. 297 ; DowB v. Green, id. 377. C. 483. ^ Gahoon v. Bank of Utica, 3 Seld. 486, also 7 How. Pr. 401. 148 JOINDER OP ACTIONS. [CH. III. cases, is limited by the provision of the Code that they must " affect all the j)arties to the action, and not require difi^erent places of trial, and must be separately stated." 1st. They must affect all the parties to the action ; that is, within the rule as above stated, they must all exist in the same right, in favor of all the plaintiff's and against all the [*196] defendants. As in the case *of LeRoy v. Shaw, above cited,' where it was contended that a guarantor might be sued with the maker of a written instrument, inasmuch as the causes of action, though several, arose out of the same transaction, etc., connected with the same subject of action. But the court said that the answer to this was, that neither cause of action " affects all the parties to the action." A plaintiff" cannot sue two defendants on a joint contract, and unite a claim on a separate contract against one of them. And see, further, the preceding chapter as to the joinder of parties. 2d. The causes of action so joined must not require different places of trial. Thus, in an action to recover real estate situated . in one county, a claim to recover lands in another county cannot be joined, because actions to recover real property must be tried in the county where the land is situated." So, also, in an action to recover personal property distrained, actions against public officers, etc. 3d. The actions so united must also be separately stated ; but if not so stated, the complaint cannot be demurred to." The rules of the supreme court require also that they shall not only be separately stated, but plainly nwivihered.'' A neglect to comply with this rule would not be a proper ground of demurrer, the defect being merely formal. [*19Y] * The remedy is by motion.' The separate statements of different causes of action required by the Code is equivalent to separate counts under the old system, and each cause of action must be distinctly set forth by itself. Thus it was held that different causes of action in slander, as for words alleged ' 3 Duer, 626. ■< Kule 25. The rule applies to an- '^ Code, t^ 123. swer and reply as well as complaint. ' I shall examine this question fur- ' 8 How. Pr. 83 ; [Henderson v. Jaek- ther in the subsequent chapter on son, 2 Sweeny, 324, 330.] " The Demurrer." Post, ch, VII, § 11. CH. III.] JOINDER OF ACTIONS. 149 to have been spoken of the plaintiff' in one place, and words alleged to have been spoken of him in another, could not be joined, unless each distinct slander vs^as separately stated by itself in a separate count.' [JSTot only must each count or cause of action be set out by itself, but it must bo perfect and complete in and of itself;' and must not require a reference to other counts to sustain it ;' but, in order to avoid repetition, allegations of facts which form a part of several causes of action may be once stated, and may thereafter be incorporated in each cause of action by appropriate words of reference, instead of repeating them at length in each ;* but such reference must be clearly and specifically made," as, for instance, in slander, that the words were spoken " of and concerning the plain- tiff' in his said trade and business of a merchant, and of and con- cerning his said books of account, which he, the plaintiff, kept with his customers and others, as such merchant as afore- said." '] [*198] * [The words, "for a further and separate cause of action," do not necessarily make a separate cause of action, if it be apparent the complaint contains but one, and that all the allegations may be properly applied to it.' Although such is the proper method of indicating' the commencement of a new cause of action, and, if such words, or their equivalent, be not used, all the allegations not necessary to a single cause of action will be stricken out on motion.'] But the Code does not require or permit the severing of a single cause of action. Thus, in an action for the negligence of the defendant, it has been held, at special term," that the com- plaint might properly set forth, in one statement, allegations of injury to both the property and person of the plaintiff'. The ' Pike V. Van Warmer, 5 How. Pr. ' Xenia, etc., v. Lee, 7 Abb. 373, 2 171 ; [Hughes v. Bees, 4 Mees. & Welsb. Bosw. 694 ; Nestle v. Tan Slyck, 3 Hill, 204.] 383 ; Loomis v. a-wiek, 3 Wend. 205 ; * Nelson v. Swan, 13 Johns. 483 ; Lat- see post, marg. p. 5'6G. tin Y. McCarthy, 8 Abb. 325, less fully ^ Simmons v. Fairchild,4S, Barb. 404; reported, 17 How. 339 ; Ritchie v. Oar- see post, marg. p. 536. rison, 10 Abb. 346, 1 Abb. Forms of * Loomis v. Swick, 3 Wend. 305 ; see Pleadings, 114, note o; see post, marg. post, marg. p. 536. p. 536. ' Hillman v. Hillman, 14 How. 456. ^ Xenia, etc., v. Lee, 7 Abb. 372, 2 ' Benedict v. Seym.our, 6 How. 298. Bosw. 694, 1 Abb. Forms of Pleadings, ' Hoxoe v. Peekham, 6 How. Pr. 339, 114, note o; see post, marg. p. 536. 10 Barb. S. C. 656, per Mason, J. 150 JOINDEK OF ACTIONS. [CH. III. ground of the action was the negligence, and all the injuries re- sulting from the act of negligence constituted but a single cause of action. The court says, in that case, "the legislature, in using the term " several causes of action''^ in this section, must have had reference to the causes of action as they were then founded, limited and defined by the common law, for there was no other resort to ascertain what constituted a cause of action." This agrees, in the main, with what was said by Justice Haeeis, in Snos v. Thomas,^ that the Code " has not changed the rule as it previously existed by which to determine what causes of action might and what might not be joined, although it had changed the classification of actions. Now as before, the causes of action to be joined must be in favor of all the plaintiffs and against all the defendants, and must all belong to the same class." " [*199] The several causes of action must be separate and inde- pendent claims, and not the same claim stated in difi'erent counts in a declaration.^ In a case at special term in the third district,* this was held unnecesswry repetition and bad pleading, and a motion was granted to strike out all but one statement, or compel the plaintiff to elect by which he would abide ; and the same thing has been since more than once decided. [The Code does not, however, under all circumstances, prohibit the use of more than one count founded upon the same instrument or trans- action; and where the complaint contains two counts founded upon the same instrument, which differ materially in substance, and are inserted for the purpose of sustaining two different and distinct claims, the court will not compel the plaintiff to elect between such counts, nor strike out either of them as repetitions ;' but such a method of pleading should be allowed with great cau- tion ;' and the court should not, in the exercise of its discretion, allow an amendment by which two inconsistent counts upon the same instrument would be inserted in the complaint, especially if ' 4 How. Pr. 48. ■• Stoeklridge Iron Co. v. Mdlen, 5 ' See this subject furtlier discussed, How. Pr. 439. post, chap, vii, § 3. ' Birdseye v. Smith, 32 Barb. 217 ; ' [Dickens v. JSfew York, etc., 13 How. Jones v. Palmer, 1 Abb. 442 ; but see 228; Fern V. Vanderhilt, T.Z Ahh. 72 ; Sheldon y. Ad.ims, 27 How. 1S2,^8S. S^ashv. McGauley,d id. 15d \ Wldttier opinion of Bockes, J. V. Bates, 2 id. 477 ; Foi-d v. Mattiae, 14 « Jones y. Palmer, 1 Abb. 443, 443. How. 91 ; GhurahUl v. OhurchiU, 9 id. 653.] OH. III.] JOINDER OF ACTIO NTS. 151 the cause of action sought to be inserted is barred by the statute of limitations.' The proper remedy in such case is by motion to compel the ])laintiif to elect which count shall stand and to strike out the others/ because the fact that the causes of action con- tained in the complaint are one, can usually only be made to appear by affidavit ; ' but if such fact appear upon the face of the complaint no afiidavit is necessary ;■* a demtirrer will not lie on the ground that several causes of action, which may be included in one complaint, are improperly joined in one count. ^ See post, marg.]). 351. J It was very correctly remarked, in a case decided before the last amendment,' that the commissioners probably had in view actions at law merely, and not equitable actions, when they framed section 167. The nature of these actions was well under- stood and their character well defined. There cannot be, there- fore (independent of the ambiguity arising from subdivision 1, which has just been noticed),' much difficulty in determining what actions may be joined under each of the other subdivisions, and, as the subject will be again incidentally treated of in the chapter on The Demurrer,' it will not be necessary longer to dwell upon it here. It should be observed, however, that there is a large class of actions in which relief was formerly administered on the equity side of the court, which do not strictly belong to either one of these subdivisions, and for the joinder of which, therefore, [*200] the Code lays down no rule, except that prescribed in *the first subdivision, namely, where different causes of action arise out of '" the same transaction or transactions," etc. Such are actions for divorce, to correct mistakes in written insti'uments, to set aside a deed for fraud, to establish a trust, etc., etc., and, generally, most of the various species of claims for equitable relief. It would be too much to say, on the one hand, that, because the ' Sheldon v. Adams, 37 How. 179, ^ Hillman v. Hillman, 14 How. 456; 183, opinion of Bockes, J. ; S. C. more Dorman v. Kellam, id. 184, 4 Abb. 303, fully, including opinions of BocKBS post, marg. p. 347. and POTTBE, JJ., 18 Abb. 405, 41 Barb. ^ Durkee v. Saratoga Railroad Go., 4 54. How. Pr. 336. * Fern v. VanderUlt, 13 Abb. 73. ' Ante, pp. 185-191. ' Lackey v. Vanderhilt, 10 How. 155. * Post, cb. Tii, § 3. * Ford V. Mattice, 14 How. 91. 152 JOINDEE OF ACTIOITS. [CH. III. Code is silent, no two such causes of action can be joined in one complaint, or, on the other, that, for the sanae reason, the plaintiff might join as many as, and what, he pleased, no matter how dis- similar and incongruous they may be, as, for example^ an action to set aside an assignment for fraud, with an action against assignor and assignee to foreclose a mortgage. On the contrary, the rule is otherwise ; and the plaintiff, it is believed, may unite with each other several causes of action not properly classified under either of the seven subdivisions of section 167, in the manner and to the same extent as he formerly might do in the same class of actions in equity. And see, further, as to what causes of action may be so united, and what is multifariousness, and when a mis- joinder is demurrable, post, chapter ^-ii, section 2. [*20l] * CHAPTER IV. THE COMPLAINT. The first pleading on the part of the plaintiff is the complaint. This is a substitute at once for the old chancery complaint in a suit in equity, and for the declaration in an action at law. A declaration under the old system was defined to be a specifica- tion in a methodical and legal form of the circumstances which con- stitute the plaintiff's cause of action. The most important requisites of the declaration were, 1st, that it correspond with the process ; '2d, that it contain a statement of all the facts necessary in point of law to sustain the action, and no more ; and 3d, that these circumstances be set forth with certainty and truth. A bill in equity was a petition, in writing, addressed to the person or persons for the time being, having the custody of the great seals of Great Britain (under our system to the chancellor), containing a statement of the complainant's case, showing his right or title to what he claims,' or, as defined by Judge Stoet,'' " a written state- ment of the plaintifl^, containing, in a due legal form, the facts of the ease on which he grounds his title to relief, or to some equitable interposition or aid from the court." [*202] * The complaint provided by the Code may be said to em- brace both these definitions, dispensing, however, with the " legal form " which each of them recognized. In other words, it unites the bill in equity and the declaration at common law. Sec- tion 142 declares what the complaint shall contain : 1st. The title of the cause, specifying the name of the court in which the action is brought, the name of the county in which the plaintiff desires the trial to be had, and the names of the parties to the action, plaintiff and defendant. 2d. A plain and concise statement of the facts, constituting a cause of action, without unnecessary repetition. 3d. A demand of the relief to which the plaintiff supposes him- self entitled. If the recovery of money be demanded the amount thereof shall be stated.' Each of these requisites of the complaint will be treated of separ ately, in this chapter, in the following order 1st. The title. 3d. Tlie statement of facts. 3d. The demand for relief. ' Lube's Eq. PI. 18. = Code, § 143. » Story's Bq. PL, § 4. 20 154 TITLE OP THE COMPLAINT. [CJI. IV. The remaining sections of the chapter will consist of other mat- ters proper to be spoken of in connection with the complaint, as follows : 1st. The verification. 2d. Supplemental complaint. SECTION I. THE TITLB 01" THE COMPLAINT. The complaint must contain the title of the cause, speei- [*203] fying the name of the court in which the action * is brought, the name of the county in which the plaintiff desires the trial to be had, and the names of the parties to the action, plain- tiff and defendant. An omission to state either of these particulars is an irregular- ity which is to be corrected, it seems, not by demurrer, it not coming within any of the grounds specified as causes of demurrer," but by motion to set aside the complaint for the irregularity ;" and the plaintiff, after notice of such a motion, can amend his com- plaint only on payment of the defendant's costs. ^ This has been directly held in cases where no mention was made in the com- plaint of the county where the plaintiff desired the trial to be had.* In Eiill V. Tliacter^ a motion was made to set aside the com- plaint on the ground of irregularity, it not containing the proper title of the cause in respect to the names of the parties. The motion was entertained and heard on the merits, but denied, among other things, on the ground that the title in this respect was sufficiently set forth in the hody of the complaint. The Code, it was said, does not specify in what part of the complaint the title shall be found. It is said, however, that in a court of limited jurisdiction, where the trial can be had in only one county, a complaint will be good though it omits to specify the name of the county.' If the name of the court be omitted, the objection, [*204] * it is presumed, will be taken the same way, namely, by ' By g 144 ; see, also, post, chap, vii, note ; [Prudden v. City of Lockport, 40 § 3. How. 46.] 2 WUUams v. Wilkinson, 1 C. R. JST. S. ^ Sail v. Huntley, 1 C. R. N. S. 31. 20. "• 3 How. Pr. 407, 2 C. R. 3. 8 Hall V. Huntley, 1 C. R. N. S. 21, « 1 Code Rep. 89. SEC. I.] THE COMPLAINT. 155 motion to set aside the complaint for tlie irregularity. A demur- rer by the Code is allowed where the complaint does not state '■^ facts suffioient to constitute a cause of action^'' so that a mere omission to state the name of the court in the title is not such a defect as can he taken advantage of by demurrer.' But, though it is a fatal objection to the pleading, if the name of the court is not set forth either in the summons or complaint,' yet, it has been recently held, that, if the summons contains the name of the court, though it be omitted in the complaint, yet the defect will be cured under section 176 of the Code, and the com- plaint will not for that reason be set aside.' The same rule, how- ever, it is thought, does not apply to the case of an omission to set forth the place of trial, and has been so decided by Justice Mitchell, at a special term in the first district.* Such an irregu- larity, it was held, was not -waived by obtaining further time to answer, and, it was said, indeed, might be corrected even after answer.' / [If no county be namedfthe defendant may move to set aside the complaint in any judicial district where the action is prop- erly triable ; ' but, where the summons stated that the complaint would be filed in the office of the clerk of the city and county of Kew York, held, New York was sufficiently indicated as the place where the defendant was required to make the motion.'] The title, it seems, must set forth correctly the names of the parties plaintiff and defendant. Their full names, both Christian and surname, should be stated, and a partnership consisting of several persons must sue or be sued \yj their names at [*205] length, and not * in the name of the firm.' Thus, A B & Co. V. C D, in the title of a complaint, would be bad, unless, indeed, it was cured by the names being correctly set forth in full in the body of the comj)laint, within the decision in the case of Rill V. Thaoter, supra. If the plaintiif sue or the defendant is sued in a particular character, it should be expressed in the title, as A B, as executor of the last will and testament of C D, deceased ; ' [Dorman v. Kellam, 14 How. 184, 4 * Merrill v. Orinnell, ]0 How. Pr. 31. Abb. 302.] 5 Merrill v. Gnnnell, 10 How. Pr. 31. ' Ward V. StringJiam, 1 Code, 118. ^ Sotchlciss v. Crocker, 15 How. 336. ' Van Names v. People, 9 How. Pr. ' Damson v. Powell, 13 How. 287. 198 ; [ Van Benthuysen v. Stevens, 14 « 8 Gaines, 170. Tidd's Pr. 447-9, How. 70.] 686. 156 TITLE OF THE COMPLAINT. [OH. IV. A B, as committee of the person and estate of C D, a lunatic, an idiot, an liabitiial drunkard ; A B, as president of the Bank of , etc. [A B, as assignee for the beneiit of the creditors of C D ; A B, as administrator of all and singular the goods, chattels and credits which were of C D, deceased ; A B, an infant, by C D, his guard ian ad litem ; A B, as sheriff of the county of ; A B, as receiver of C D ; A B, as receiver of the A bank ; A B, as over- seer of the poor of the town of ; A B, as supervisor of the town of ; the board of supervisors of the county of . The word " as " is material, and cannot be replaced by any other word.'] [*206] * " If the process describe the plaintiff or defendant as being executor, administrator, etc., the plaintiff may declare gen- erally in his own right, treating the description as a mere super- fluous addition, just as if the word ' carpenter ' had been idly introduced." ° [If the summons be in favor of A B, the complaint may be in favor of A B, in a representative capacity, for that only narrows the demand which the defendant was called upon to answer ; ' but, if the summons be in favor of A B, " as " executor, etc., the plain- tiff cannot enlarge the capacity in which he sues, and the plaintiff must declare in the capacity described in the summons.*] The title of the complaint need not, in certain cases, agree with the summons in the number of parties defendant. Thus, it is held, in Tramis and others v. Tobias amd others,^ that there is nothing in the Code which prevents the application of the com- mon-law rule, that, where the writ did not require special bail, several persons might be named as defendants, and the plaintiff might declare and proceed against any one of them separately,' and it was accordingly ruled that a plaintiff was regular in delivering a complaint against one defendant on whom process was served, omitting the names of others mentioned in the summons. Of course this can apply only to cases where the defendants are sev- erally liable [and does not apply to justices' courts ']. ' Eenshall v. Roberts, 5 Bast, 154. ' 7 How. Pr. 90 [4 Denio, 347]. 2 Merritt v. Seaman, 6 N. Y. 168. = 16 Johns. 44, 3 id. 358, 4 Term R. 3 1 Chitty's Pi. 350. 696. * 1 Chitty's PI. 250. ' 6 Hill, 639. SEC. I.J THE COMPLAINT. 157 By section 175, when the plaintiff shall be ignorant of the name of a defendant, such defendant may be designated in any pleading or proceeding, by any name ; and, when his true name shall be discovered, the pleading or proceeding may be amended accord- ingly. An early case under the Code [Pindar v. Blachy [*20T] shows the propriety as well as the proper *application of the rule. The defendant in the action, whose real name was unknown to the plaintiff, but who was in command of the sloop Hornet, of Troy (the action being brought for damages committed by the sloop on her passage up the Hudson river), was sued by the name of James Black, and an order of arrest allowed. This was considered regular. The plaintiff being ignorant of the defendant's real name, remarks the court, was authorized by the one hundred and seventy -fifth section to designate him by any name, in any pleading or proceeding. He might as well call him " the mam in command of the sloop Horjiet," as by any other name more brief, but less distinctive. In the case of Crandall v. Beach and John Doe' Justice Strong decided that a plaintiff could not use a fic- titious name at his discretion, but only when ignorant of the true name of the defendant ; and, that, in such case, where the contract is a joint liability, such as a partnership liability or the like, the plaintiff could not recover without proving on the trial who the other joint obligor or copartner was, and showing that the name used in the pleadings is fictitious [and plaintiff may use a fic- titious family and also given name.' When a party is known by two names, one as well as the other, he may be sued by either.' A child, not yet named, may be sued as the youngest male or female child of its father and mother, naming them.'] A vari- ance between the summons and complaint in the name of the party defendant set forth in the title, as if a defendant be named in the summons Isaiah Hart, and in the complaint Israel Hart ; or a misnomer, as if Isaac Hart be sued by the name of Isaiah Hart, it has been said, may be taken advantage of by motion to set aside the summons and complaint. ° [The notice ' 4 How. Pr. 95. ' BUy v. BronrjMon, 2 Sim. & Stu. 188, '' 7 How. Pr, 271 [Miller v. SteUiner, 1 Bng. Ch. Rep. (Banks's ed.) 22 How. 518, 7 Bosw. 692, 11 How. 378]. « Elliott v. Sort and others, 7 How. = JFVank v. Levie, 5 Rob. 600. Pr. 35. * Eagleston v. Son, 5 Rob. 640. 158 TITLE OF THE COMPLAINT. [CH. IV. of motion should not, however, be signed by the attorney for the defendant generally, but only for the purposes of the motion.' But the better doctrine seems to be that the misnomer should be pleaded in abatement.'] But, under the foregoing pro- [*208] vision of the Code, it *would seem that if the plaintiff were ignorant of the defendant's christian name, he might describe him by a fictitious christian name in the title, alleging that fact in the complaint, and that the ease, therefore, would not be one of misnomer. In all these cases the plaintiff should set forth such a descrip- tion of the person of the defendant as he is able to give, and should show particularly his interest in, and connection with, the action. In a partition suit, if any of the parties are unknown, the stat- ute^ authorizes the plaintiff to proceed against such "owners unknown," and, of course, their names need not be set out in the title. [But the complaint must allege that there are certain unknown owners of the premises in question.* The Code makes the same provision in foreclosure cases.'] Must agree with the summons. Under the old sytem the dec- laration was required to correspond with the process not only in the names of the parties, the number of the parties and the chai-- acter in which the parties sued, but also in some eases in the cause of action. The rules upon that subject, however, were technical, ° and can have but a limited application to the system of this Code. The foregoing cases show the extent to which the principle has been considered applicable to the Code, so far as regards the conformity of the complaint with the summons in respect to the parties. As to the conformity between the sum- mons and the complaint in respect to the cause of action, a spe- cific rule is laid doM'n by the Code, which is peculiar in itself, and is not strictly analogous to the old system. Section 129 pro- vides that the plaintiff shall insert in his summons a notice in sub- stance as follows : ' Dole V. Manley, 11 How. 138 ; Bax- ^ 2 R. s. 319, § 12, 2 Edm. St. 328 : ter V. Arnold, 9 id. 445. 2 R. S. 330, S 84, 2 Edm. St. 340. 2 Miller v. Stettiner, 22 How. 518, 7 * Hyatt v. Pugsley, 28 Barb. 303 ; Bosw. 692 ; Traver m. Eighth Avenue Rogers v. McLean, 31 id. 307. E. R., 3 Keyes, 498, 6 Abb. N. S. 46. ' Code, 8 135. 6 See 1 Cbitty's PI. 278-285. SEC. I.] THE COMPLAINT. 159 [*209] * 1st. In an action arising on contract for the recovery of money only, that he will take judgment for a sum specified therein, if the defendant fail to answer the complaint within twenty days after the service of the summons. 2d. In other actions, that if the defendant shall fail to answer the complaint within twenty days after service of the summons, the plaintiff will apply to the court for the relief demanded in the complaint. [The complaint must, in all cases, agree with the notice in the summons in respect to the classification of actions specified in this section ; otherwise it is an irregularity, and the complaint will be set aside, provided the motion be made at the earliest opportunity,' before answering," or obtaining an extension of time to answer,' unless the order extending such time provide that it shall be with- out prejudice to such a motion.' But such a motion cannot be made until the summons is actually served." A general appear- ance in the action is not a waiver of the irregularity." There is some conflict in the authorities as to the form of the notice to be used, but we think the following rules may be safely followed : Cases which Fall within Subdivision I. 1. "Where the action is upon a contract which, hy its terms or hy necessary implication, liquidates or determines the amount of damages.' 2. Where the amount of damages can be ascertained by mere computation." 3. Actions for penalties, the amounts of which are fixed by statute, in consequence of which the law implies a promise to pay that sum.' 4. Actions for money had and received, notwithstanding the complaint contains an allegation that defendant converted it to his 1 Tuttle V. SmitJi, 6 Abb. 329, 14 How. ^ Freeman v. Young, 3 Rob, G66. 395 ; Bidder v. Whitlock, 13 id. 208 ; « Tuttle v. Smith, 14 How. 395, C Sender v. Gomstoah, 4 Eobertson, 644, Abb. 339. and autborities cited. ' Flynn v. Hudson River Bailroad, 6 '^ Willett V, Stewart. 43 Barb. 98. How. 308; Cemetery Board v. Teller, 8 = Garrison v. Garr, 34 How. 187, 3 id. 504 ; People v. Bennett, 6 Abb. 843. Abb. N. S. 366.* « Id. *4 Sandf. 660, 5 How. 44, 5 Sandf. « people v. Bennett, 6 Abb. 343, 657, 34 How. 338. 160 TITLE OP THE COMPLAINT. [CH. IV. own use/ for such an allegation is immaterial, and the plaintiff is entitled to recover without proof of it.'' 5. Actions upon implied contracts to pay a definite sum fixed by law, as upon a judgment." It was held in Olicvmjylin v. Diets,* in the sixth district, where it was alleged, in the complaint, that defendant agreed to pay plaintiff for his services so much as they were reasonably worth, the summons should conform to subdivision one. Xo opinion is reported, and we think the decision is in conflict with the prin- ciple laid down in many of the authorities, and the spirit of the Code. In such a case the value is mere matter of opinion, and the plaintiff may state it at any sum he pleases. By comparing the first subdivision of section 129 with the first of section 246, it will be seen that the language, so far as the point under consider- ation is concerned, is identical, and that the plaintifi' would be at liberty to enter judgment for the amount to which, according to his estimate, he is entitled. The defendant is powerless. He cannot answer, for his defense goes to the question of damages merely,' and, if he could, plaintiff should not be at liberty to put hinl to the trouble and expense of interposing a defense. If the defendant appear without answering, the plaintiff is not obliged to assess Ms damages, but may enter judgment for the amount claimed." It is only where the plaintiff designs to apply to the " court'''' for the " relief demanded," that he is compelled to give defendant notice of the application where there has been an ap- pearance.' The case of Mason v. Hand,' in the same district, seems to have gone upon the ground that both counts were upon the same cause of action, and, as the first was upon a contract to pay the amount claimed in the summons, the second count was super- fluous, and did not render the complaint a departure from the summons. The reasoning of the cases in the sixth district, we think, went further than the spirit of the Code justified, and we have no doubt that the courts will gradually settle down upon ' Ooff V. Edgerton, 18 Abb. 381. " Gilbert v. Rounds, 14 How. 46. ■' GovnougUy v. Wiohols, 43 N. Y, 83. « Code, § 246, subd. !.■ 2 Piople V, Bcnndt, 6 Abb. 343. ' Code, i:; 246, subd. 3. * 37 How. 214. 8 1 Lans. 66. SEC. II.] THE COMPLAINT. 161 some simple rule, by means of which the practitioner can easily determine how to frame his summons. Cases undee Subdivision II. 1. Actions for a breach of contract, where the damages are not liquidated, or cannot be made certain by mere computation.' 2. When the gravamen of the action is a tort.° 3. When the action is upon a bond with a penalty." 4. An equitable action,* as against an attorney for an account of moneys collected by him." 5. All actions not clearly within subdivision one, as above enum- erated. If the summons conform to subdivision two, the plaintiff may declare for any cause of action, and the court will not set aside the complaint, although it demand judgment for a specific sum of money," esi^ecially if the complaint accompany the summons.' Where two causes of action are properly joined, one of which requires a notice under subdivision one and the other under sub- division two, the summons should conform to the latter." In all cases of doubt it will be safer to use a summons for 'relief," and, if possible, serve the complaint with it. [*313] *3ECTI0]Sr II. THE STATEMENT OF FACTS. The original Code provided that the complaint sliould contain : A statement of the facts constituting the cause of action, in ordin- ary and concise language, without repetition, and in such a manner as to enable a person of common understanding to know wlaat is intended.' ^Cemetery Board v. Teller, 8 How. ^ Mayor v. Lyons, 1 Daly, 296, 300; 504 ; Tuttle v. Smith, 6 Abb. 329, 14 Salters v. Ralph, 15 Abb. 373. How. 395 ; CM v. DunJdn, 19 id. 164, •■ Shafer v, Humphrey, 15 How. 564 ; reversing S. C, 17 id. 97 ; Norton v. Hemsen, v. Decker, 29 id. 385. Gary, 23 id. 469 ; Salters v. Ralph, 15 ' West v. Brewster, 11 N. Y. Leg. Abb. 273; Hemson v. Decker, 29 How. Obs. 157, 1 Duer, 647. 385 ; Garrison v. Carr, 34 id. 187. * Hemsen v. Decker, 29 How. 385. ^ West V. Brncster, 1 Duer, 647 ; Waters ' Brown v. Ectton, 37 How. 325. V. TT/iirtemore, 22 Barb. 593, correcting 'Norton y. Gary, 23 How. 469, 14 opinion of Crippbn, J., 13 Barb. 634. Abb. 364. 9 § 120 Original Code, subd. 3. 21 162 STATEMENT OE EACTS. [CH. IV. As amended in 1851, it is as follows : A plain and concise statement of the facts constituting a cause of action without unnecessary repetition.' It will be seen at a glance that the amendment does not sub- stantially alter the section as it originally stood. The decisions, therefore, that have been made under the original Code are equally applicable to the Code as thus amended. A careful consideration of this important branch of the subject will render it necessary to enter into a full and perhaps minute examination (even at the risk of repeating a portion of what has already been said)° of the cases that have been decided and reported since the Code, in order to ascertain what is a sufficient statement of '■'■facts constituting a cause of action " within the meaning of the Code, and what are the principles and rules which govern such statement. [*214] *It has been observed that the old declaration at law was but a mere statement of facts " constituting the plaintiff's cause of action, in metJiodioal and legal form." So, too, the bill in equity was a statement " in due legal form of the facts of the case on which the plaintiif founded his title to relief, or to some equitable interposition or aid from the court." ' The plaintiff was required to state whatever was essential to his right to recover, and was necessarily within his knowledge, and to state it positively and with precision, but the matter was not re- quired to be set out with that decisive and categorical certainty which was necessary in an action at law.* The reader is referred to a previous section of this work which treats of the rules to determine the sufficiency of pleadings under the Code,' in which it was attempted to be shown that no part of the chancery system is retained except what was technically called the stating part of the bill, and that there never was, in reality, any essential differ- ence in the mode of setting forth the facts in the stating .part of an equity bill, and in a declaration at law. The Code then, it seems, dispensing with the method and the form, retains the sub- stance, both of the old common-law declaration and of the stating > § 143 Code, subd. 2. < Story's Eq. PI. 236, Mitf, Eq. PI. 41. ' Ante, ^i^ iii and iv, chap. 1. ^ Ante, cliap. i, § iv 8 Story's Eq. PI., § 7, 34, Coop. Eq. PI. 6. SEC. II. J THE COMPLAINT. 163 part of the bill in equity. " The pleader may use his own language, but the necessary matter must be there and be stated in an intelligible and issuable form, capable of trialP ' [*215] * Or, as the rule is stated in another case : " The principles of pleading, whatever the system, are always the same. Its office is to present a cause of action on the one side and a defense on the other. This is not less true, under our present system, than it was under the former. Names are changed, use- less forms and technical rules are abolished, but the principles remain unchanged." " These established principles of pleading, as applicable to the statement by the plaintiff, of the facts consti- tuting his cause of action, it will now be our object to consider, and, in doing so, I shall examine them under the following gen- eral heads : First. What matter must be alleged in the complaint. Second. "What must not be alleged. Third. What need not be alleged. Fourth. How the fact must, be stated. And first : What matters must be alleged m the complaint. — The complaint must contain, generally, all the facts which, upon a general denial, the plaintiff will be bound to prove in the first instance, to protect himself from a nonsuit, and show hiinself entitled to a judgment.^ Every fact is to be deemed constitutive which is necessary to maintain the action, which the defendant has a right to controvert,* or which, if the cause of action [*216] be not denied, will enable the *court to grant the relief sought.' Or, as the general rule is stated in another case," the " complaint must set forth all the material and issuable facts which are relied on as establishing the plaintifl:''s right of action." And again, it must be so framed " as to raise upon its face the question whether, admitting the facts stated to be true, the plain- tiif or defendant is entitled to judgment, instead of leaving that question to be raised and determined upon the trial." ' Boyee v. Brown, 7 Barb. S. C. 81, Sandf. 437, 4 id. 665, 4 How. Pr. 98, 5 per Hand, J. id. 390, 7 L. O. 149, id. 315, 1 C. E. ton V. Davis, 6 How. Pr. 102, 3 id. 59, 3 id. 61, 5 Sandf. 564, 1 401, per Harris, J. Duer, 707, 2 id. 670. ' The following authorities are cited ■• Oarvey v. Fowler, 4 Sandf. 667. in support of this proposition, and * TaUman v. Oreen, 3 Sandf. 437. otliers will be referred to in the course ^ Mamn v. Morewood, 5 Sandf. 558. of this chapter : 9 Barb. S. C. 158, 8 164 STATEMENT OF FACTS. [CH. IV. Tliis general rule is, of course, applicable to every description of pleading under the Oode — ttiat which has heretofore been de- nominated equitable as well as legal. It will, perhaps, be best illustrated by considering it in its aj)plication to particular classes of actions, as established on principle and authority both before and since the Code. In doing so I shall examine the subject par- ticularly with reference to those actions which were heretofore known as of common-law origin. And first: Actions on contract. — A consideration is an essential element in every valid contract. Without some good or valuable consid- eration, an agreement is a mere nudv/m pactum, and void. Hence one of the most obvious and important rules in pleading a con- tract was that the consideration must be set forth, because proof of a consideration was absolutely necessary to establish the validity of the claim. There was no better settled rule of pleading than that [*21'r] the complaint on a contract must show a * consideration. The consideration must either appear impliedly from the instrument itself, as a promissory note or bill of exchange, or the complaint must expressly state the particular consideration on which the contract is founded. And it is essential that the con- sideration stated should be legally sufficient to support the promise for the breach of which the action is brought. This principle is supported by innumerous authorities in our own and other States.' A complaint against defendant for not performing certain work according to contract, without showing that he was to have any thing for his work, contains no cause of action, and is bad, because the undertaking is not shown to be upon any consideration what- ever, which is an essential fact necessary to support an action on contract. This was so held under the Code in Bristol v. Hensse- laer and Saratoga B. R. Go.^ in which the plaintifi' complained against the defendants, as common carriers, for non-delivery of goods, without alleging that they did, or were to, receive any compensation for carrying the goods, and the agreement, there- fore, it was said, was to be regarded as made without consideration. [So in an action on an order, not negotiable, the complaint must ' See cages cited in note 2, p. 293 of ' 9 Barb. S. C. 158, Gen. Term, 4th 1 Cliitty's PI. (9th Am. ed.) district. SEC. II. J THE COMPLAINT. 165 allege that the acceptance was for a good and valid consider- ation.'] The complaint must show a consideration whenever proof of it is necessary to support the action ;' and if such consideration be not set forth, it cannot be proved, and the action will fail/ Mutual promises must be stated to have been made at the same [*218] time. That in consideration of the plaintiff's * promise the defendant " afterward promised," etc., is bad.* The consideration stated must be legally sujfioient. If it be frivolous, or void, or illegal, the complaint will be bad on demur- rer, as not stating facts sufficient to constitute a cause of action. A mere moral obligation, as we shall presently notice more at large, will sustain a promise, and such a consideration appearing in the complaint will be sufficient. Under the old system the whole of the consideration must be stated, otherwise it would be a fatal variance at the trial. But where part of the consideration was frivolous or insufficient, viz., such as if it stood alone would not support an assumpsit, that part need not be stated; or if stated, it would not vitiate the pleading if the residue was good.' And where an action was brought on an agreement containing a variety of stipulations on both sides, it was not necessary or proper to set out the whole. It was sufficient to state so much of any contract, consisting of several distinct parts and collateral provisions, as contained the entire consideration for the act, and the entire act which is to be done in virtue of such consideration." I suppose that the strict common-law rule which regarded the variance as fatal, if it ap- peared on the trial that the whole consideration was not set forth, would not be rigorously applied under the Code, and the liberal system of amendments which it allows. [*219] * The consideration of a contract, in the language of pleading, is either executed or executory, that is to say, something already done or to ie done by the plaintiff. It is not, and never was, as a general rule, necessary to state an executed consideration with so much precision as an executory one, with ' [BieJiardson v. Carpenter, 2 Sweeny, ^ 1 Gaines, 583, 12 Johns. 299. 360.] ' ' Sandf. PI. and Ev., and cases cited, ■' 4 Johns. 280. vol. 1, pp. 187 to 189. 3 9 Barb. S. C. 158. ' Id. 166 STATEMENT OF FACTS. [CH. IV. reference to time and place, nor as to quantity, quality or value. It was necessary, however, to allege that the executed considera- tion arose at the defendant's request, though such request might in some cases be im23lied in evidence. And in stating a con- sideration as executory, the plaintiff was required to aver a per- formance before action, or a readiness and willingness to perform.' These rules, I suppose, are mostly formal, and, though they may be properly observed under our new system, their application is, perhaps, not indispensable to a good and valid pleading under the Code. If the pleading set forth substantially a good or valuable consideration, or the facts from which such consideration is hnplied in law, and which, if proved in evidence, will establish as a legal conclusion the fact of a sufficient consideration to sustain the promise, it will be sufficient. And hence results another principle which was recognized to some extent, even under the old system, and which has a very decided place under the Code. There are a variety of contracts, mostly sealed written instrumeuts or promissory notes, bills of exchange and the like, in which no consideration, iade- [*220] pendent of the contract, need be proved, and *therefore none need be alleged in the pleading. This is neither a violation of, nor an exception to, the general rule that the plead- ing, in an action on contract, must show a suflQcient consideration. For a negotiable promissory note, or bill of exchange, of itself imports a consideration. So, also, does a seal on a written instru- ment, such as a bond for the payment of money, a deed, etc. In declaring upon these written instruments and liabilities, therefore, the mere statement of the liability which constitutes, or descrip- tion of the instrument which imports, the consideration is suffi- cient. ISTo consideration need be proved on trial, and none, there- fore, need be alleged in the complaint. This doctrine is supported by numerous authorities," and is so held under the Code.^ But if the instrument, on its face, do not disclose a consideration, then a consideration must be averred and proved,* as in complaining on a note not within the statute, and not expressing for value ' 1 Saund. PI. and Ev., and cases « 7 L. 0. 149. cited, pp. 190, 191. "3 McCord, 318; [P«<>pZ6 v. Shall, 9 ^ See cases in 1 Chitty's PI., note 1, Cow. 778.] p. 393. SEC. II.j THE COMPLAINT. 167 received ; but it is sufficient to state that it \, as given for value received, without averring a special consideration.' Though it was held, that if the plaintiif undertook to set forth the consider- ation specially, he was bound to prove it as laid," this is now, doubtless, otherwise under the system of amendments allowed by the Code. Such a variance, unless proved actually to have "mis- led " the opposite party, would be disregarded on the trial.^ L*221] * It is held to be sufficient in a complaint to allege that on a certain day and at a certain place the defendant, by his promissory note in writing, for value received, promised to pay the plaintiff, or bearer, a specified sum ; that he has not paid the same, and is indebted to the plaintiff therefor, although there is no allegation that the defendant delivered the note, when it was payable, whether due or not, or that the plaintiff" was the holder and owner thereof.* The words, "for value received," import a consideration as between the indorser and indorsee, and, in a com- plaint thereon, the complainant, who alleges himself to be the lawful holder, need not aver or prove a consideration.' Upon similar principles a complaint on a sealed instrument need not aver a consideration," because a consideration need not, in the first instance, be proved. It is sufficient to say that the defendant executed and delivered such an instrument under his hand and seal, to the plaintiff", without averring or proving a con- sideration. And, doubtless, the general and universal rule is that no con- sideration need be expressly alleged in the pleadings, unless such consideration must be proved on the trial to sustain the action ; and, where the instrument or contract itself imports the consid- eration, or it results from the facts set forth in the pleading, by necessary im^pUcation, as a conclusion of law, in such cases the pleading will be sufficient under the Code, without a special aver- ment of consideration.' [If an agreement state a nominal consideration, it cannot be defeated by proof that it was not in fact paid. The omission to pay it does not show a want of consideration, nor will proof that > 7 Johns. 311, 10 id. 418. ^ i Code, 119. « Id. « 4 Johns. 416. ' See post, chap, ix, § 3. ' [Douglass v. Howland, 24 Wend. ■> 6 Barh. S. C. 763. 35.] 168 STATEMENT OF FACTS. [CH. IV. it was not paid entitle the defendant to a verdict.' The recital of the payment of a consideration estops the party from denying it, for the purpose of destroying tlie effect or oj^eratiun of the instrument, but not for tlae purpose of recovering the considera- tion money.'' The surrender of a paper wrongfully obtained and held, which a court of equity would order delivered up, furnishes no consideration f but the compromise of a disputed claim, made ho7iaJide, does ;* otherwise of a claim which a party knovjs to be un- founded, for, in such case, his conduct is fraudulent.' The words, " for value received," are su&eientjprima/aoia, to show a good con- sideration ;° but the word " agree" does not, of itself, furnish one;' nor does the assumption of a mere ideal, but not a legal, liability ;° otherwise as to assuming a liability, however inadequate, at de- fendant's request;' nor is a promise by a debtor to pay the cred- itor's expenses in coming to see him valid ;" otherwise if the journey were undertaken on the debtor's promise to pay such expenses ;" or a reasonable charge for expenses in making a journey to ex- amine property, prior to making a loan thereon ;''' or a reasonable charge for trouble and expense in procuring money to loan.'^ A promise to forbear prosecution of an unfounded claim is without consideration, provided it be conclusively shown that the suit, which was the foundation of the promise, could not have been prosecuted to effect ;" so the transfer of an instrument void by the statute of frauds;" or a promise to pay for being recanted 1 GMlds V. Barnum, 11 Barb. 14 ; * Oahot v. Masking, 3 Pick. 83, 93. Walcott v. Ronalds, 3 Rob. 620 ; Ring « Small v. Ludlow, 1 Hilt. 189. V. Steele. 8 Trans. App. 46. i" Bean v. Jones, 8 N". H. 149 ; Wil- '' Grout v. Townsend, 2 Hill, 557; Hams v. Sancer, 7 Paige, 581. (See Ooit V. Wat. Prot. Ins. Go., 35 Barb. Moak's note to Clarke's Cb. 81, ed. 190; Oreenncmlt v. Davis, 4 Hill, 1869.) 643. " Earger v. McGullough, 2 Denio, 119 ; 3 Crosby v, Wood, 6 N. Y. 369. Hine v. Handtj, 1 Jobns. Ch. 6 ; ap- ■* Gallisher v. Bischoffslieim, L. R., 5 proved, 21 Barb. 188. (See Moak's note Q. B. 449. to Clarke's Ob. 31, ed. 1869.) * Gallisher v. Bischoffslieim, L. R., 5 '- Lynde v. Staats, 1 N. Y. Leg. Obs. Q. B. 452. 89. (See Moak's note to Clarke's Cb. ' Eastern Plank Road Go. v. Vaugli- 31, ed. 1869.) an, 14 N. Y. 546 ; Jackson v. Alexan- '* Eaton v. Alger, 3 Keyes, 41 ; Xet- der, 3 Johns. 484 ; Watson v. McLaren, chum v. Barber, 4 Ilill, 334 ; Storer t. 19 Wend. 557 ; affirmed, 26 id. 435 ; Goe, 3 Bosw. 661. (See Moak's note to Douglass v. Eowland, 34 id. 35 ; Clarke's Ch. 31, ed. 1869.) Miller v. Cook, 33 N. Y. 495 ; The Gon- '■■ Qould v. Armstrong, 3 Hall, 366. necticut, etc., v. The Gleveland, etc., 4:1 ^^ Ehle v. Jiidson, 24 Wend. 97; Barb. 9. Gomhs v. Bateman, 10 Barb. 573; Van '' Newcomb v. Glark, 1 Denio, 236 ; Allen v, Jones, 10 Bosw. 369. Knox V. Nutt, 1 Daly, 313. SEC. ir.] THE COMPLAINT. 169 from a bargain \oid by the statute of frauds ;' otherwise, prob- ably, Avhere a specific performance could have been enforced in equity ;' nor is a note, given to secure a precedent debt of another, valid, unless there be an agreement of forbearance on the part of the payee ;' or it be signed in consequence of an agreement at the time of making that such signature should be procured if request- ed.'' A promise to keep money already due until a certain time, and to pay interest thereon, is without consideration f but a promise to forbear, in consideration of a. new security, is valid." In order to induce his debtor to secure the debt, by mortgage on his own real estate, the creditor deducted $50. After the amount secured became due, the creditor forebore pressing for payment on receiving a note for the $50 and interest. The latter note was held valid, on the ground that securing a debt, by the debtor's own property, is no satisfaction and not a good consideration ;' but such an agreement for security, if secured by any thing belonging to a third person, would have been upheld.' Where plaintilf, by mistake, paid defendant's tax, which defendant promised to repay, it was held a valid promise." If an assignee of a lease assign it and take an agreement for the payment to himself of the rent, it is without consideration, for the last assignee becomes liable to the landlord." Otherwise of a contract to a lessor to pay rent to the landlord, for he is liable to the landlord upon his covenants in the lease." Where the holder of a mortgage assigned it, and afterward took from the mortgagor his note for interest in arrear at the time of the assignment, held, the note was void, unless the payee showed that the amount of it had been applied upon the mortgage debt." An agreement to pay heirs a certain sum, if • Sihernail v. OoU, 12 Barb. 685 ; 34 N. J. Law, 346 ; Saioyer v. Fernold, Van Allen v. Jones, 10 Bosw. 369 ; 59 Maine, 500. Lawrence v. Sinith, 27 How. 327. ^ McNaught v. McGloughry, 43 N. Y. ''Lawrence v. Smith, 27 How. 334; 22; Farnsworthv. CTor/fc, 44 Barb. 601. Witbeok v. Witbeck, 9 Cow. 206 ; Thm-pe ' Kellogg v. Olmstead, 25 N. Y. 189, V. Thorpe, 1 Salk. 171, 13 Mod. 455. 28 Barb. 96 ; BeynoUs v. Ward, 5 Wend. ^Commercial Bank v. Norton, 1 503, 19 id. 389, 5 Duer, 203. Hill, 501 ; FarnswortJi v. G lark, 44 * Traders' Bank v. Bradner, 43 Barb. Barb. 602 ; 1 Pars. Coiit. (5tli ed.) 444, 379. note n; Deacon v. Gridley, 15 C. B. ''Plaits v. Walrath, Lalor's Sup. to (80 Eng. C. L. Eep.) 395, 38 Eng. Law Hill & Denio, 59. and Eq. 345 ; Bicssell v. Buck. 11 Vt. « Keeler v. Salisbury, 37 Barb. 485. 166 ; Goxirtney v. Boyle, 10 Allen, 133 ; » Nixon v. Jenkins, 1 Hilt. 318. Green v. Shepherd, 5 id. 589 ; Jackson "> Stoppani v. Bichard, 1 Hilt. 509. V. Jackson, 7 Ala. 791 ; Beebe v. Moore, " Jackson v. Poi-t, 17 Johns. 479. 3 McLean, 387 ; Sockenbury v. Meyers, " Qillett v. Gampbell, 1 Denio, 520. 22 170 STATEMENT OF FACTS. [CH. IT. they will not oppose the probate of a will, is valid.' A com- plaint, to recover a sum agreed to be paid upon compromise, should allege speciiieally that there was some doubt or dispute as to the validity of the claim, or, if a judgment as to its regularity or validity, upon which the defendants might have founded a pro- ceeding to vacate or reverse it."j [*222] * Other a/oerments in actions on contract, omd herein of notes and other written instruments. — The defendant's contract, the breach of which is complained of, must be positively and distinctly alleged. The plaintiff can recover only upon the promise alleged ; therefore, if that be bad or insufficient in law, the court cannot give judgment for him. If the promise or engagement contained an exception or proviso, which qualified the defendant's liability, the complaint at common law was required to notice the exception, or there was a fatal mis-statement. As where a declaration averred that the defendant had warranted a horse to be sound, and the warranty was subject to the exception of a kick in the leg." Or where the declaration stated that defendant had under- taken to carry and deliver goods safely, and the contract proved was subject to the exception of fire and robbery.'' But no more of the contract was required to be stated than was broken, as, where the contract consisted of several distinct parts and collateral provisions, it was sufficient to state so much of it as constituted that contract, the breach of which was complained of, and which prescribed the duty to be performed, and the time, manner and other circumstances of its performance.' The complaint should in general contain all such averments as are necessary to show a complete cause of action. If, for example, defendant's contract be to do an act at the expiration of a given time, or the happening of a certain event, it must be aver- [*223] red that the time has expired, or that the event *happened before the commencement of the suit ; or, if the act to be done were such as required time [as to pay when convenient]," and no specified time were agreed on, it must be averred that a reason- able time had elapsed.' In regard to bills of exchange and prom- ■ Palmer v. North, 35 Barb. 282. « 1 Saund. PI. and Ev. 197-200. 2 DoUhm- V. Fray, 37 Barb. 152. « 18 Ohio State Rep. 88. a 2 B. & 0. 20. '1 Saund. PI. and Ev. 201, 203, and • 4 E. & C. 446, 4 Camp. 20. cases there cited. SEC. II.] THE COMPLAINT. 171 issory notes, it was sufficient to aver, with respect to the time of payment, " which period has now elapsed.'' If it appeared upon the face of tlie declaration, however, that the time of payment had expired, no averment was necessary. Nor, indeed, would a demurrer lie to a declaration, unless it appeared affirmatively upon its face that the cause of action was not due when the suit was commenced.' The rule has been fully recognized under the Code, and it has been held that a demurrer will not lie to a complaint [which does not show any credit was given], for not averring or showing that the debt for which the action was brought had be- come due at the time of the commencement of the action.^ [The broad language of the court in the case of Allen v. Pat- terson,^ has been disapproved in the more recent cases. In an action against members of a joint-stock association, after a recov- ery of a judgment against the company and return of execution thereon unsatisfied, it is not sufficient to allege that the company " became indebted to the plaintiff for goods sold and delivered," but the facts showing the liability must be set out." This latter case, however, has been held to depend upon the statute relating to joint-stock associations, and not to apply to an action against a stockholder of a corporation." A complaint upon a promissory note, which alleges that defendant made and delivered it to the plaintiff, setting out a copy, that there is due and owing the plain- tiff' thereon the amoiint thereof, and which demands judgment for that amount, is good." So a party who \as performed a writ- ten agreement for work and labor may count upon the implied assumpsit of the other party to pay the stipulated price, and is not bound to declare specially upon the agreement ;' otherwise if not performed.' It has been held, and, we think, properly, that such indefiniteness as seems to be tolerated in Allen v. PaMerson, would not be allowed if the question were raised on a motion to make the pleading more definite and certain, "1 T. R. 116, 3 Dowl. N. S. 936, 1 ^ Eettletaa v. Myers, 19 N. T. 331, CMt. PL 363, 365. reversing 1 Abb. 403, 3 E. D. Smith, 2 MayTiard, v. TaUott, 11 Barb. 569 ; 83. see, also, Allen v. Patterson, 3 Seld. ' Hosley v. Black, 38 N. Y. 443, 444, 479. 36 How. 97, 17 N. Y. 337, 31 id. 305, 13 3 7 N. Y. 476. id. 370. ^ Witherliead v. Allen, 3 Keyea, 563, » 9 Abb. 353, 18 How. 335. 565, reversing S. C, 38 Barb. 665. ' MiU&r V. White, 8 Abb. N. S. 46,54. 173 STATEMENT OF PACTS. [CH. IV. instead of by demurrer.' An allegation that defendants sold property, as manufacturers, is not sutHcient to show they were such."] In regard to averments and statements in complaints on promis- sory notes and other written instruments, the following rules of pleading may be noticed, founded mostly on decisions made since the Code. In an action by indorsee against the indorser, an averment of protest of the note is necessary to charge the indorser." [But, although not advisable, the want of such an allegation may probably be supplied by an allegation that " plaintiffs have duly performed all the conditions in said contract on their part.*] In such a suit it is necessary to prove a presentment and demand at the flace specified in the note for payment. ° And if [*224] * payable at a particular bank the demand must be alleged and proved to have been made at the bank. An averment that the demand was made of the cashier is not sufficient.' Before the Code, therefore, it was necessary that these facts should be specially averred in the pleading. But since the Code it seems a general statement that the note was " duly presented " and " duly demanded," is sufficient under section l62, which dispenses with the necessity of pleading the facts sh<, wing the performance of a condition precedent in a contract.' It is necessary, on the face of the complaint, to show that the party bringing the suit is the lawful holder or owner of the note. A complaint by indorsee against indorser, averring merely an indorsement in blank by the payee, but without alleging that the plaintiff was the lawful holder of the note, was held to be defect- ive in the ISTew York common pleas.' The same court held that a mere allegation that the plaintiff was the lawful holder of the note, without averring that the note was indorsed by the payee to the plaintiff, was insufficient, the allegation being a mere con- clusion of law.' 1 Vheesebrough v. New Yorh, etc., 26 « 17 Johns. 256, 11 Wheat. 171. Barb. 9, 14, 13 How. 557, 560. « 19 Johns. 419. ' Smith V. Mawhood, 14 Mees. & ^ Oay v. Paine, 5 How. Pr. 107. Welsh. 452. « Iloxie \. Cushman, 7 Leg. Ohs. 139. 3 N. Y. Com. Pleas, 1 C. R. 102 ; 7 » Vanderpoel v. Tarbox,, 7 Leg. Obs. L. 0. 53 ; [GonlcUng v. Qandall, 1 Keyes, 150. 328.] * Butchers' Bank v. Jacobson, 15 Ahh 320, 24 How. 204. SEC. II.J THE COMPLAINT. 173 And the same rule was recognized in an early case at special term of the supreme court.' A similar doctrine is countenanced in the case of Parher v. Totten^ where it was said that the mere holder of a negotiable promissory note, who has no interest [*225] * in it, cannot now maintain such action upon it, and there- fore the complaint must state facts sufficient to show the plaintiff's title, interest in, or ownership of, the note. But in Lord V. Gheseborough,' in the New York superior court, it is intimated that a general averment of ownership would be suffi- cient without alleging an indorsement over to the holder, or other facts going to establish the ownership. And in Taylor v. Cor- hiere,* which was an action by the indorsee against the maker of a promissory note, the complaint alleged that the note "was duly indorsed by the payee, and transferred to the plaintiff for a good and valuable consideration, and that the defendant had not paid the same, but was justly indebted to the plaintiff therefor." This was held, notwithstanding the case of Beach v.- Gallup, a sufficient averment that the plaintiff was the owner of the note at the time of commencing suit. And in James v. Ghalmers," in the superior court, affirmed by the court of appeals," in an action by the indorsee, it was declared sufficient to aver that the note was indorsed to the plaintiff, without averring any consideration for the indorsement. The presumption of law, it was said, is, that the holder is the owner. He is not required to aver or prove that it was transferred for value, whether it came into his hands before or after it was due. If the suit be brought directly by the payee against the maker, it is held unnecessary even to [*226] allege that the plaintiff is the owner or party in interest, *or that the note is due, or when it is payable by the terms of it ; to say that the defendant is indebted and proinised is suffi- cient. So held at special term in Peets v. Pratt, on demurrer.' The plaintiff is required to prove, in a suit on a promissory note, 1st, the identity of the note ; 2d, his interest in it ; 3d, that the defendant is a party to it ; 4:th, that the defendant has not per- formed his contract.' The possession of the note is jyrima facie 1 Beacli V. Gallup, 3 Code R. 66. ' 5 Sandf. 52. 2 10 How. Pr. 234. « 3 Seld. 209. 3 4 Sandf. 696, 1 G. R. N. S. 322. ' 6 Barb. S. C. 663. -i 8 How. Pr. 385. « Qieason v. Qieison, 1 C. R. N". S. 414, 174 . STATEMENT OE FACTS. [CH. IT. evidence that it is not paid.' So, too, it is of ownership, even where there is no averment of ownership in the complaint, and the answer does not set up such a defense." Copy of written instrument, when such complaint. — It has been thought that the law in respect to the form of complaint on all written instruments for the payment of money, has become obsolete by the amendment to section 162 of the Code, which is as follows : "In an action or defense founded upon an instrument for the payment of money only, it shall be suflHcient for the party to give a copy of the instrument, and to state that there is due to him thereon, from the adverse party, a specified sum which he claims." It is, however, erroneous to suppose that this clause of the Code makes a mere copy of the note, or other written instrument, in all cases a sufficient statement of a cause of action. Enough must also appear on the face of the complaint to show that the [*227J * present plaintiff' has a right to maintain the action against the present defendants. The plaintiff's interest in the note is an essential fact to be proved," and it must be averred either expressly or by necessary implication. If the action be by the payee in person, a copy of the note will, in general, be suffi- cient, without accompanying it with an averment to show the plaintiff's ownership or interest, within the principle of Pests v. Bratt * and James v. Ohalmers," supra ; and, should the defendant wish to show in his defense that the plaintiff has parted with his interest in the note, he must allege such fact on his part in his answer. Possession of the note, as we have seen, raises the pre- sumption of ownership sufficient to make out a prima facie case to sustain the action, which, however, under such a state of plead- ings, the defendant would be at liberty to disprove. But the case is different if the right of action has vested in, and the suit is brought by, a third person. The question came up in the superior court in Lord v. Cheseborough' as to the effect of this amendment to the Code in such a ease, and it was held that, in a complaint on a written instrument, where the plaintiff is not 1 Id. ■• 6 Barb. S. C. 663. « Hoxie V. Oushman, 7 L. 0. 149. « 2 Se)d. 209. 'Qiesaon v. Giesson, 1 0. R. N. S. ^4 Sandf. 696, 1 C. R. N. S. 822; 414 ; {^Gonlding v. Oandall, 1 Keyes, {Gonlding v. Oandall, 1 Keves, 22S]. 238]. SEC. 11.] THE COMPLAINT. 175 the party to whom the instrument was made payable and delivered by the defendant, the complaint should show, by some suitable allegation, the plaintiff's right to sue thereon. In that case [*228] the holder of the note sued the makers, * setting forth a copy of the note drawn by the defendants, payable to their own order, and indorsed by them in blank, and claiming, as due thereon, a specified sum. Justice Sandfoed, in his opinion in that case, says: "It is said that section 162 is intended as a substitute for the statute allowing parties to sue the several parties to bills and notes by a declaration containing only the common money counts, with a copy of the bill or note sued on attached to the declaration ; but we do not see the analogy, nor how it helps the plaintiffs. That statute made no change in the form of pleading. It seems to us that the complaint in this case is defective in not showing, by some appropriate averment, the transfer of the note in suit to the plaintiffs, or that they are the lawful holders and owners of the note; and we think that it was competent to the defendants to traverse as they have done the transfer of the note to the plaintiffs and their owner- ship." The propriety and good sense of this construction of the statute must be apparent. It is presumed if the note, instead of having been indorsed in blank, had been indorsed to the plaintiff, a copy of such indorsement, with the allegation that such a sum was due to the plaintiff, would have been a sufficient averment or sug- gestion of the plaintiff's interest and right to maintain the action within this section of the Code and the case already cited.' The rule was carried still further in the subsequent case of Alder [*229] V. JBloomingdale,^ in which the opinion of the * court, de- livered by DuBE, J., was concurred in by all the judges of that court. The action was by indorsee against maker and in- dorser of a promissory note, and though the complaint set forth a copy of the note, and averred that it had been duly indorsed to the plaintiff, yet it contained no averment that it had been duly presented to the maker for payment, and that notice of protest had been given. On demurrer by the indorser, the complaint was ' See Andrews v. Astor Bcmk, 2 Duer, ' 1 Duer, 601 ; [GonJcKng v. Q-andall, 639. 1 Keyes, 338 ; Requa v. Ouggeriheim, 8 Lans. 51]. 176 STATEMENT OF FACTS. [CH. IV. held to be bad. Section 162 of the Code did not, it was thought, apply to the contract of an indorser, or allow the instrument itself to be set forth as a sufficient cause of action, without the averment of a demand of payment, notice of protest, etc. " Such a demand of payment, or notice of dishonor," says the court, " or a state- ment of facts by which they are excused, the plaintiff must prove upon the trial, and the facts thus necessary to be proved, as they constitute in part the cause of action, must be averred in the com- plaint." The decision in this case is placed on the ground that the contract of an indorser is not a " written instrument for the pay- ment of money only," within the meaning of the Code, and that an action against such indorser is not an action "founded upon" such instrument, as in the case of Lord v. Oheesborough, but that the action is " founded on something more than the note, and that something must be averred." The principle, I apprehend, is sound, and can be maintained ; and, although it has been controverted at the general term of the supreme court, in the l^few York [*230] district,' as it is * said by the unanimous opinion of all the judges of that district, yet it has been followed and ap- proved in other parts of the State. Such was the decision of Mr. Justice Welles, in Bank of Geneva v. Gulick,^ a case in all re- spects similar to that of Alder v. Bloomingdale, wherein it was held that a complaint against an indorser which sets forth a copy of the note, but does not aver demand of payment of the maker, and a notice of protest, is bad on demurrer, and is not cured by section 162. Indeed, the court intimates the opinion that the section was designed merely to relieve a party from setting out the written instrument, according to its legal effect^ and was not intended to change the rules of pleading elsewhere provided in the Code. A practice equally strict is indicated by Justice Bacon in Prvndle v. Carutfters.^ The plaintiff, who was the assignee of the note or instrument, a copy of which was set forth in the com- plaint, alleged that such instrument " was the property of the plaintiff by purchase," and this was held insufficient on demurrer. The plaintiff, it was said, must state his interest in or title to the instrument, and such other facts outside of it as are necessary to ' Roberts v. Morrison, 11 Leg. Obs. Payne, 5 How. 107 ; and Ranney v. 60. Smith, 6 id. 430. » 8 How Pr. 61 ; see, also, Oay v. = 10 How. Pr. S3. SEC. II.] THE COMPLAINT. 177 recover upon it ; and the dictum of Judge "Welles, in Bcrnk of Geneva v. Gulich, supra, that this provision of the Code was intended merely to relieve a party from setting out the instrument according to its legal effect v?as approved. [*231] * The true application of the section of the Code under consideration, I apprehend, is to be found in that class of cases where the action is upon a written instrument for the payment of money only, as a note, a bond, etc., and the parties to the action are the parties to the original contract [without proof of any extrinsic fact, such as protest, etc. J. In all such cases a complaint is sufficient, which is properly entitled in the names of the parties, and contains a copy of the instrument, with a state- ment and claim of the amount due thereon, without alleging any extrinsic facts. Thus, in the recent case of Andrews v. The Astor Bank^ the action was against the defendant as acceptor of a bill of exchange, which was accepted by the defendant as president of the bank. The complaint, containing a copy of the bill and acceptance, was held good under section 162 of the Code, without any allegation that the bank accepted the bill, or that the defendant was president of the bank, or as president had authority to accept, and the decision was thought by the court to be perfectly consistent with its prior decisions in Lord v. Cheesboroiogh and Adler v. Bloomingdale. So in Chappell v. Bissell,^ in the supreme court, the action was upon a promissory note by payee against maker. A complaint entitled in the names of the parties, giving a copy of the note, and alleging a sum due thereon, for which the [*232] plaintiff demanded * judgment, was held sufficient; and, although the plaintiff in the suit, "James Chappell," was described as payee in the note by the name of " J. Chappell," the pleading was held good, without any averment that the plaintiff and payee of the note were the same jDersons. That fact, it was considered, must be implied in support of the pleading. But in most or all other cases of written instruments for the payment of money, except where the parties to the action are the parUes to the original ccntn^act, it will be necessary to aver the extrinsic facts, showing the plaintiff's title or right to maintain > 2 Duer, 639. « 10 How. Pr. 375 [ConMing v. Gan- doll, 1 Keyes, 331]. 23 178 STATEMENT OF FACTS. [CH. IV. tlie suit, notwithstanding section 162. In such cases the remarks of the court, in Brnik of Geneva v. OuUoh, swpra,^ are properly applicable, namely, that it could not have been intended to excuse the plaintiff " from stating his interest in, or title to, or from alleg- ing such other facts outside of the instrument as are necessary to enable him to recover upon it." In the case cited by way of illustration, of a suit on a note signed A B & Co., it cannot for a moment be supposed that a plaintiff' might bring his action against A B & Co., on a simple copy of the note, without setting forth the names of all the parties defendant, and avemng that such parties compose the iirm of A B & Co. So, too, a complaint by the obligee against one of two joint obligors of a bond, which merely set forth a copy of the bond with a demand of the amount due, without an averment of the death of the other obligor, would no doubt be bad on demurrer. [*233] * These principles have been well understood and applied by the courts of one or two sister States under similar statutes. In Indiana, in a suit entitled in the name of an execu- tor, a promissory note given by the defendant to the testator, filed as the cause of action, was held to be insufficient under a statute authorizing the tiling of a note or other written instrument as a sufficient statement of the plaintiff's demand. The supreme court of that State held that the mere description of the plaintiff's per- son, as executor in the title of the suit, was not enough to show his connection with the demand. There should have been an averment to show his interest in the note." So in a suit by hus- band and wife on a note payable to the wife before marriage, a copy of the note is not of itself a sufficient statement of demand without an averment of her marriage with the co-plaintiff." So on a note of a firm, signed in the partnership name, the complaint should contain the names at length of the firm, with an averment that such parties compose the firm, it being said by the court that " the statute dispenses with a formal declaration, but it does not dispense with parties to suit." * The general rule under the statute in that State seems to be, that whenever a written contract is filed as a statement of the cause of action, a want of an averment of '8How. Pr. 51. « 4 Black. Ind. 147. « 6 Black. Ind. 88. •• 3 Black. Ind. 323. SEC. II. J THE COMPLAINT. 179 facts connected with the contract, and necessary to be proved on the trial, is not a fatal objection, if enough be stated to har a/nother suit for the same demand.^ Or, as the rule was laid down [*234:] in * a very early case : '■' " No action can be supported for any demand whatever, unless the demand is so far identi- fied by description as to be distinguishable from any other demand of like nature. Its most prominent features must be delineated, so as to be known wherever they make their appearance, that one recovery may har every future attempt to enforce ths same d^- ma/ndP ' Conditions precedent. — The section of the Code above refer- red to, in respect to the pleading of written instruments, has made an important change in this respect. It was a general rule, subject to some exceptions under the old system, that in pleading the performance of a consideration or covena/nt, the party could not plead generally that he had performed the covenant or condi- tion, but must show specially the time, place and manner of per- formance.' Where a specific act was to be done by the plaintiflF, or any number of acts, by way of condition precedent, he must show in pleading precisely what he has done by way of perform- ing them." The Code, however, has altered this rule," and [*235] provides that "it may he stated generally that the * party duly performed all the conditions on his part, cmd, if such allegations he coninroverted, the party pleading shall he hound to establish on the trial the facts sTwwing such performance." [Where the party absolutely refuses to perform, that fact may be averred. In such case it is unnecessary to allege a tender of perform- ance,' even though the full time for performance has not elapsed."] If the performance of the condition precedent is not denied in ' 6 Black. lud. 148. ii«JiiTy of wliicli he complains, if it be ' Bond V. Paterson, 1 Black. Ind. 3, founded ontort;andin actions founded 4, 5. on contract the account, note, bill, bond ' It is to be remarked that these decis- or other statement in writing of the ions are all on suits arising in justices' nature of the demand on which he in- courts, the courts of record in that State tends to rely." The above decisionfi, at that time following the old common- therefore, are not inapplicable to our law rules of pleading. The statute Code. regulating pleading in justices' courts * Steph. on PI. 334. is substantially the same with our ^ 24 Wend. 163. Code. It provides that the plaintiff ' § 163. shall "file with the justice a concise ' S«ar« v. Coraouer, 33 How. 834 ; iJe«' Wood v. Henry, 40 N. Y. 124. SEC. II. J THE COMPLAINT. 193 But where the complaint alleged that defendant, " to induce the plaintiff to purchase said horse, falselj and fraudulently repre- sented the said horse worth, and of the value of $120, and guar- antied the said horse to be sound in all respects, and wholly free from disease," and then alleged that the horse had a disease called " sweenie" which said disease was well known to the defendant at the time of said sale, held that the action sounded in fraud and plaintiff could not recover without proof of scienter.'' Where the complaint contains a cause of action for fraud, and also one for warranty, the party will be compelled to elect at the commencement of the trial, for which he will go, and after he has so elected, he will not be allowed to change his ground.' A complaint whic^ alleges that defendant was employed as plaintiff's peddler, to sell goods and return the proceeds thereof to plaintiff with any goods not sold, and setting out the contract of hiring, with allegations that defendant had a portion of such goods, and the money received for another portion thereof, belong- ing to the plaintiff, for which he neglected and refused to account to plaintiff, hid converted the same to Ms own it.se, is not an action arising on contract ; the contract being only inducement to the action ; the grava/men of the complaint is the conversion of the goods and money by the defendant. ° Where a vendee agreed to pay for goods purchased " as she could, and out of her business, from the proceeds of the sale of said goods," this was held not to be an agreement to pay as fast as she conveniently could, but that defendant must show affirmatively that she could not have paid out of her business or from sales of the goods.*] In a case in the Ifew York superior court,' Justice Duee says : " Every fact which the plaintiff must prove to enable him to maintain his suit, and which the defendant has a right to con- trovert in his answer, must be distinctly averred ; and every such a/oerinent must he understood as meaning what it says, and con- sequently is one to be sustained by evidence which corresponds with its meaning." And again, the same court, by the same learned judge, in the 'Jfoorev.JV^o5?«,53Barb.425,36How. 'Bidder v. Whitloek, 13 How. 308, Zi^; Marshall Y. Gray, ■i<:)\A.l'1'i {61s. Keller v. Olark, 18 Abb. 157, see tinguishing Bennet v. judson, 21 N. T. Austin v. Bawdon, 44 N. T. 63. 238, and Craig v. Wa/rd, 30 Barb. 377). * Johnson v. Plowman, 49 Barb. 473. ' Bpringsted v. Lawson, 33 How. 303. » Qarwy v. Fowler, 4 Samd. 667. 25 194 STATEMENT OP PACTS. [CH. IV. [*250] case of Mann v. Morewood.' " To *dra-w the proper con- clusions from the facts which are relied on as constituting a cause of action, or a valid defense, is the exclusive province and duty of the court, and to enable the court to discharge that duty, the facts themselves, not the conclusions that are supposed to flow from them, must be stated in the pleading, without prolixity, but with reasonable fullness and certainty." And the question stated in the case of Mto v. Woodworth, in the court of appeals, above noticed, namely, whether the old form of pleading the common counts was now proper under the Code, seems to be answered in the negative. " There can be no demurrer to a count for money had and received, and if such a complaint is good, every pleading tinder the Code raay be so framed as to leav§ the adverse party in total ignorance of the facts meant to be proved, and yet be safe from a demurrer. Thus the manifest design of the Code in com- pelling parties to plead specially, by requiring the facts to be stated, would be completely frustrated, and a system of pleading introduced which, as universal in its application, would be far more obscure and deceptive than that which has been abolished." In this case it was determined that under a complaint which claimed an indebtedness arising from an over payment of money on the settlement of an account, it was not competent to intro- duce evidence to show that such settlement was wholly eifected by an order given for the delivery of stock, no money in fact having been paid. The argument of counsel was that payment of stock was, in judgment of law, a payment in money, and might be so described in the complaint, and that money [*251] overpaid, by mistake on *settlement, was, in judgment of law, money had and received by the creditor to the use of the debtor, and might be recovered under a count for money had and received. But the court, as we have seen, did not sus- tain these positions. This doctrine has been repeatedly enforced in that court, and may be considered there as the settled practice." Thus in the case ' 5 Sand. 558. the trespass liad been committed by ' And also in the N. T. Common two of the defendants at the instiga- Plras ; Thus in the case of iocs T, iJwTO- tion and request of the third, who, it iplircy (1 Smith's Com. Plea, 196), in an was averred, had employed the other action for trcsjiass against three de- two for that purpose. It was urged fendants, the complaint alleged that by counsel, on the avithority of Dollner SEC. II.] THE COMPLAINT. 195 of Smith V. Leland^ the general term of the court laid down a rule directl}' the reverse of that adopted in DoUner v. Giison, holding, that, though the delivery of goods sold to a third per^ son, for the use of such person, under an authority of the pur- chaser, is, in judgment of law, a delivery to such purchaser, yet it is so, not as &fact, but as a conclusion of law, and therefore, in an action against such purchaser, an averment of delivery to him is insufficient; but the plaintiff must aver the facts which he intends to prove, namely, the delivery of the goods to the third person, and his authority to receive them. A general [*252] *averment of deli-^'ery to the purchaser cannot be sup- ported by proof of a delivery to a third person under an authority to receive the goods sold. [In pleading the act of the agent, it may be alleged to be the act of the principal, for it is so in law."] In the case of Fairljanks v. Bloomfield' in the same court, a demurrer was sustained to a complaint for a similar defect, namely, because it dealt not in facts, but conclusions of law. The action was for damages for unlawfully converting a vessel alleged to be the property of the plaintiffs, the title to the possession of which tlve plaintiffs claimed under a certain mortgage which was not set forth in the coiuplaint ; this the court held should have been done, or, at least, that so much of the instrument as gave it its charac- ter of a mortgage, should have been set forth, so as to enable the court to draw the legal conclusion from the facts pleaded that it was such an instrument as vested in the plaintiffs the legal right of possession. Nor was the complaint considered as aided by the averment that the defendant vml.amifulhy converted the ve&- sel, the averment being also a mere conclusion of law, and not warranted by the facts which preceded it.* V. OUiSon, that the complaint should cipal. At the same time he thought have stated the facts " according to that though the fact itself was required their legal effect," tha^is, should have to be stated, yet there was no objection charged the alleged trespass as the di- to the plaintiff stating, in addition to red act of all three of the defendants, the facts, what he considered their le- But this view of the case was not af- gal effect, firmed by the court. So in the recent ' Duer, 497. case of St. John v. Griffith, in the su- » Bennet v. Judson,Zl N. T. 238. preme court, 1 Abbott's Pr. 39, Justice ' 3 Duer, 349. EOOSBVBLT held distinctly that the * It would seem, however, in this act of an agent could not, under the case, within the decision in Heine v. Code, be pleaded as the act of his prin- Anderson, 3 Duer, 318, that the com- 196 BTATEMENT OF PACTS. [CH. IV. So in the case of Liena/n v. Lincolm,^ a general allegation in a complaint that the defendant had received money, or property, to the use of the plaintiff was held insufficient on demurrer. [*253] Whether a person *had received money or property to the use of wnother, is a question of law depending upon the facts which are to be litigated, and these facts must be stated. So in the case of Lawrence v. Wright,^ it was held insufficient in an action to recover real estate to allege that the plaintiif became seized by a lawful title to premises, which the defendant unlaw- fully withholds. These allegations are not of facts, which, as constituting the cause of action, the Code requires to be set forth, but are merely conclusions of law, which, unless they follow from the facts previously alleged in the complaint, must be wholly dis- regarded. The court, in this case, notices the error which so fre- quently occurs in the mistaken interpretation of the words " facts constituting a cause of action," and points out the distinction between such "facts" and mere abstract propositions in morals or law which in a popular but not a legal sense may also be caUed " facts ;" and it remarked : " All these errors in pleading will be avoided if it is constantly remembered that the facts which the Code requires to be set forth are not true propositions but physi- cal facts, capable, as such, of being established by evidence, oral or documentary, and from which, when so established, the right to maintain the action, or the validity of a defense, is a necessary conclusion of law — • a conclusion which the com-t wiU draw, and which it is quite unnecessary that the pleader should state." These general propositions and conclusions lead us to the consid- eration of another branch of this subject, namely : [*254:] *The common counts. — The rule of pleading, namely, that the facts must be stated, and neither the legal con- clusion, nor the legal eflects of the facts, may now be safely applied to all cases where the action is for a common debt, or money demand arising on contract, and in which heretofore the common counts, as they are called, were used ; as, plaint would have been good, if in- ment it is held in the case just cited stead of setting forth the evidence of that documentary proof of title is ad- title, and drawing the conclusion that mlssible. plaintiff had the right of possession, ' 2 Duer, 670. it had contained a general allegation ^ 2 Duer, 673. of ownership. Under such an aver- SEC. II. J THE COMPLAINT. 197 For goods sold and delivered, or bargained and sold. For work and labor done. For money had and received to the plaintiff's use. For money paid, laid out, and expended for the defendant. For money lent. For use and occupation, etc. The common counts were founded on express or implied promi- ses to pay money in consideration of a 'precedent and existing debt.' They were of four descriptions: 1st. The indebital/us count. 2d. The quantxmb meruit. 3d. The quantwm valebant. 4th. The account stated. The indebitatus count stated generally that the defendant on a day named was indebted to the plaintiff in a named sum of money for goods sold, or labor, or for money lent, paid, or had and received, or for some other pre-existing debt on simple contract, at the defendant's request, and that being so indebted, the defend- ant, in consideration ihereof, promised the plaintiff to pay, etc., and then the common breach, that the defendant, although requested, had neglected and refused to pay, to the plaintiff's damage, etc. [*255] *The indebtedness, accruing at the defendant's request, the cause or subject-matter thereof, and \h.Q promise to pay, constituted the essence of the indebitatus count. The quantum meruit and quantum valebant counts were in a different form ; the first alleging a promise on the part of the defendant to pay as much as the -pldimiiW reasonably deserved to home, and the second a like promise to pay as much as the thing was reasonably worth. The account stated, also alleged 2^ prom- ise on the part of the defendant, on an accounting, to pay the balance found due." These various promises, reg-wesfe, etc., thus alleged as the basis of the common counts, were scarcely any thing more than mere legal fictions. They were almost always matters implied by law, not requiring any express proof. In pleading there was no dif- ference between an express and an implied promise.' Both were stated affirmatively and positively, and the latter was supported by proof of a state of facts from which the law drew the infer- 1 1 Cliit. PL 340. 3 1 cMt. PI. 340 n. " 1 CMt. PI. 341 198 STATEMEITT OF FACTS. [CH. IV. ence of a promise. Thus in the case of Eno v. Wood/worthy above cited, if the plaintiff desired to recover back the money paid by him, on the failure of the defendant to fulfill the written agree- ment entered into, he would, under the old system, have declared on the indebitattm count, for money had and received by the defendant to the plaintiff's use at the defeudant's /■eg'wes^, alleging a.j>ro7nise to pay. And so in the case of Mamm, v. More- [*256] wood, noticed above, he would, under a precisely ^similar declaration, have been allowed to give evidence of an over-payment in money, or what in judgment of law was its equivalent, on the settlement of an account. The defendant, in point of fact, never requested him and never made a promise ; and none would have been proved on the trial ; but simply a state of facts, from which a request and promise might be vrrvplAed in lam, and which entitled the plaintiff to recover. It is, in real- ity, as much a fictitious mode of pleading as was the manner of stating a case in trover, namely, that the plaintiff casually lost a chattel, and that the defendant found it ; the fact alleged was never really to be proved, but only a state of facts from which, as a matter of law, the losing and jmding were implied. This method of pleading does not seem, within the decisions last cited, adapted to the genius and spirit of the Code, which requires " the facts " to be stated, not conclusions, inferences, matters implied in law, or the legal effect of facts. It was a mere technical rule of pleading which permitted (but did not absolutely require) an implied promise to be pleaded as an express promise ; and these technical rules of pleading, as we have seen, are abolished by the Code. Indeed, even under the old system, the facts constituting the cause of action might be stated ; that is to say, a special decla- ration might be used in cases where the common counts were also proper ; ' and in many cases for the sale of goods, for [*25Y] money had and '"'received, for work, labor and services, the common counts could not be used, but the plaintiff must declare specially on the facts constituting his cause of action." It is not, however, meant to be here said that a cause of action ' Formerly these general counts bold man who first ventured on them, were not in use ; and Lord HOLT is 1 Chit. PI. 343. said to have remarked, that he was a ^ See 1 Cow. Treat, pp. 126 to 155. SEC. II.] THE COMPLAINT. 199 under the Code, set forth substantially in the form of the old w- defyitatus count, would not be good, nor was this so held in Enos v. Woodworth. All that is meant is that, under the Code, it is not necessary, nor is it believed to be proper, to allege in a pleading an implied request or an implied promise, or any other matter implied liy law, either as the foundation of the action or as ancil- lary thereto. The facts raising the implication, and they alone, should be stated, because they alone are to be proved. The cases of Tucker v. Rushton,^ Manning v. Whiibech,' Mann v. More- wood,' and Glenny v. Hitahins,^ were undoubtedly decided on correct principles. In the latter case it was alleged merely that the plaintiff sold and delivered to the defendant certain goods, describing them, to the value of a certain sum, and claimed judg- ment in a specified amount. There was neither a request on the part of the plaintiff, nor a promise by defendant alleged ; and a demurrer, on the ■grolihd that the complaint did not allege a promise or any legal liability on the part of the defendant, was very properly overruled. In the former case the complaint alleged an indebtedness, and also that the plaintiff" claimed a certain [*258] sum for the use and occupation of certain * rooms for a specified time, at a specified price, and also for articles furnished by plaintift' for defendant. This also was held sufticient. The case of Allen v. Patterson, in the court of appeals,' seems to be upon the same principle. The complaint in that case stated that the defendant is indebted to the plaintiff in a certain sum specified, for goods sold and delivered at his request, on a certain day specified, and that such sum is now due to the plaintiff' from the defendant, for which the plaintiff demands judgment. This complaint was held good on demurrer, the word "due," it was said, importing not merely indebtedness, but that the time when payment should have been made had elaj)sed. The decision was followed in a similar case, Beehman v. Plainer' in the supreme court at general term. I am aware that it is said by Mr. Justice Ceippen, in the case of Blancliard v. Strait,'' that the common counts under the 1 2'C. R. 59, 7 L. 0. 351. <■ 3 Seld. 476. 2 Law Reform Tracts, 18. 6 15 Barb. S, C. 550. 8 5 Sandf. 558. ■> 8 How. Pr. 83. * 4 How. Pr. 98. 200 STATEMENT OF PACTS. [CH. IV. former system of pleading are not sufficiently definite and certain under the Code, and reference is made to sustain this remark, to what was said in Jinos v. Woodworth, in the court of appeals, above cited. It was further observed, in this case, that "if a question exists upon this subject it should be solved by holding that it is not oiilj jti^oper, but absolutely necessary, to show that the defendant received money to the plaintiff's use, and such statement should be understood to mean what is said." [*259] This view of the question was concurred * in by Justice Cady in the still more recent case of Wood v. Anthony.^ I do not regard it, however, as materially conflicting with the principles above laid down, and especially with the decision in Mann v. MorewooA^ heretofore referred to. A common count, such, for example, as the count for money had and receiv£d by defendant to the use of the plaintiff, cannot be properly used except in those cases where the form of the count expresses the fact which it is intended to prove in evidence. As if A remit money to B, to pay to C, and B promise C to pay it to him, C may sue B for so much money had and received, and I think properly use the common count in assumpsit, as he might have done under the old form of pleadings.^ But in all those cases where the law implies a contract, that is to say, where the assumpsit for money had and received to the plaintiff's use is raised as a question of law, from certain facts which are to be proved in evidence, then, under the Code, these facts should be pleaded, and the common count ought not to be used as it was under the old system. As, for example, whei'e the defendant has tortiously taken the plain- tift''s goods and sold them, and received the proceeds.* So, also, money extorted by duress of the plaintiff''s goods, and paid by the plaintiff' under protest.' So, also, in the cases of JEnos v. Woodworth, Mam,n v. Morewood, and Lienan v. Lincoln, since the Code, above cited," though the old common coimt might [*260] have * been properly adapted to all such cases before the Code, yet now it is no longer so adapted, and the facts raising the implied assumpsit must be stated. And such I under- 1 9 How. Pr. 78. ^ 6 Ad. and E. 180, 3 Sandf. PI. and 8 5 Sandf. 558. Ev., part 3d, pp. 358, 359. ' 5 Ad. and E. 548. " And see, also, to tlie same eflfect, * Ld. Eaym. 1316, 8 Bing. 48. GusMnqlmm v. Phillips, in the N. Y. Com. Pleas, 1 Smith's Com. PI. 416. SEC. II.] THE COMPLAINT. 201 stand to be the purport of all the cases. In the case of Rail v. Souihmayd^ Justice Hand allowed a demurrer to a complaint containing the common count for use and occupation of lands and premises, upon the ground, it would seem, that the complaint did not state a cause of action even under these coiints. "An action for use and occupation," he observes, " is founded upon contract, express or implied, and lies only where the relation of landlord and tenant exists, and the complaint, therefore, should show that this relation existed, and that the defendant so held under the plaintiff." He further considers the question whether a state- ment of the cause of action, substantially in the form of the common count in indebitattis assumpsit, is now a proper mode of pleading, but lays down no positive rule on the subject, apart from the particular case under consideration. " These forms," he remarks, " obtained sanction when great attention was paid to logical pleadings, and maintained their place for a long period. However, I have some doubt whether, under the Code, the cause of indebtedness should not be more di- rectly stated than in the old forms. With, perhaps, this [*261] *exception, I think it is competent for the plaintiff, in a proper case, to use, in substance, this mode of stating his cause of action." The same learned judge, in the case oi Stewart V. Travis etal.^ uses the following language: " My own impres- sions, however, have been that the common counts, perhaps with some variation, are still good. A direct allegation of the cause of indebtedness, as the loan of money, sale of the goods, or per- formance of the work and labor, etc. , etc., may be preferable to the former recital of indebtedness; but certainly it must be enough for the plaintiff to state facts sufficient to create a legal obhgation upon the part of the defendant, and such viola- tion of that obligation as creates a cause of action, and I think this statement may be according to the legal effect of the facts." There was nothing in the statute, he thought, compel- ' 15 Barb. S. C. 32 ; see, also, Bromn the provisions of the contract, in form V. Golie, in the New York Common or legal eflfect, and allege that he has Pleas (1 Smith's Com, PI. 866), in which performed them, or, if not literally per- it is held that a plaintiff cannot com- formed, state the facts which warrant plain generally for a balance due a departure therefrom, him for work and labor on a special ^ 10 How. Pr. 148. contract ; but that he should set out 26 202 STATEMENT OE EACTS. [CH. IV. ling US " to invent new modes of expressing the same legal propo- sition." These views are, doubtless, in the main correct. The " excep- tions " suggested to the general use of the common counts are not, however, attempted to be defined, nor is any rule indicated as to what may be regarded as a " proper case " for their use. If I am correct in the views above expressed, the class of cases which I have noticed, in which the assumpsit or contract was implied in law, furnish the exceptions alluded to, and in which it would not be proper to use the common counts. It is to be remarked further, in respect to this subject, [*262] that, under the old forms, an action of assunvpsit *or of debt as for so much money had and received to plaintiff's use, would lie where defendant, not being a mere servant, receives actual money which belongs to plaintiff and which in equity or justice ex cequo et iono, he should not retain, and which ought to be paid to the plaintiil.' So debt, as well as assuinpsit, would lie to recover money paid to the use of the defendant, and the com- mon count was proper when money had been paid at the express request of the defendant, and in some cases even without such request." And so, also, debt, as well as assumpsit for money lent to another, on his account, at his request, and the common counts, in either form of action, might be generally used.' Now it will be seen, by reference to the forms of the ordinary counts in debt,* that they never set out or alleged a promise to pay. Thus for example, the indebitatus count in debt was in the simple form that the defendant was indebted to the plaintiff in a specified sum, stating generally the cause of indebtedness, or subject-matter of the debt, whether for work, services, or money, the sale of real estate, or personal property, precisely the same as in assumpsit, averring that by reason of such indebtedness, and such sum of money remaining wholly unpaid, an action had accrued to the plaintiff to have and demand the said sum. The cause of action was stated to have arisen from the sale and de- [*263] livery of *the goods, the work and labor performed, 1 3 T. R. 370, 3 B, and Ad. 354, 3 » lb. 398 to 400. Saund. PI. and Ev, part 3d, 358, and * See precedents in 3 Chit. PI. 385 to cases there cited. 387. ^ See cases cited in 3 Saund. PI. and Ev. part 3d, pp. 403, 403. SEC. II.] THE COMPLAINT. 203 etc.,' and these were alleged as the subject of the indebtedness with- out any promise to pay. And the same form was used in debt for money lent, for money paid, money had and received, etc. The proTnise, however, was requisite and essential in the common counts in an action of assumpsit," whether such promise was, in point of fact, expressed or implied, and must of necessity be alleged to turn the action in form from an action of debt into an action of assumpsit. Mr. Justice Sblden notices this distinction in Dows V. Sotohhiss,' and very properly observes, " since, then, all distinction between actions of assumpsit and actions of debt are abolished, what necessity can there be for inserting this aver- ment ? I can see none whatever." The conclusion arrived at is, that the old common count in deit, and not indebitatus assumpsit, is the proper form of complaint under the Code ; and it seems to me that this conclusion must be admitted to be correct and logi- cal in all cases where it is not designed to prove on the trial an exjTress promise, and where, under the limitations above given, the common count may be used as expressing precisely the fact by the proof of which it is intended to sustain the demand. It may further be added, that in an action of assumpsit, it was always necessary (except in the counts for money had and received), to allege that the debt or obligation was incurred at the [*264:] defendants request.'^ *This was not necessary in an action of debt, though it was usual to state, as matter of form, that the sum in which defendant was indebted was to be paid to plaintiff, " when he, the said defendant, should be thereunto after- ward requested."' Such averments cannot be necessary under the Code, unless in that class of cases where an actual demand and refusal to pay before suit brought is necessary to be proved to sustain the action, in which case they must be averred in the complaint. These conclusions I regard as fully substantiated by the case of Allen v. Patterson," in the court of appeals, hereto- fore cited, which exhibits a claim set out substantially in the old form of a common count in debt, for goods sold and delivered, without averring either a promise, or liability to pay when ' Emery v. Fell, 2 Term R. 28. ■* See precedents, 3 Chit. PI. 36 et seg 2 See precedents, 3 Chit. PI. 36 to 108. « 3 Chit. PI. 385, 386, and note. = 10 Leg. Osb. 281, cited in Voorhies' ' 3 Seld. 476. Code, p. 144. 204 STATEMENT 01*^ PACTS. [OH. IV. requested, tliongh containing an averment of indebtedness, and that such sum was dioe. The complaint was held sufficient under the Code on demurrer.' [The committee of a lunatic sent to the State Lunatic Asylum is liable to the county for the amount paid thereat for the maintenance and clothing of such lunatic/ and so a town may recover of a husband money advanced by the overseers of the poor for the necessary support of his wife and children as paupers ; ° otherwise, if not paupers,* but not beyond the amount required for the wife's necessary support as a pauper.'] The general conclusions, therefore, arrived at on this subject may be summed up as follows : In all cases where the money counts heretofore might have been used, the plaintiff may still set forth his cause of action in this form, if it expresses the fact necessary to he proved in order to fix the defendant's liability ; as, for example, if he has actually performed work and labor for the defendant, with his assent, or has actually sold and deliv- [*265] ered him goods which *have come to his hands, and have been iised by him ; or has lent him money which he refuses to pay, etc., etc., leaving out, however, those legal fictions of a request or promise, which the law implies from the essential fact of the sale and delivery, the labor done, or the money lent. If the labor has been done or the goods delivered, at the easpress request of the defendant, it should be so alleged, and proved, as it will save the necessity of alleging and proving other facts tend- ing to show that the labor was not gratuitous, or the goods were not delivered without the linowledge or assent of the defendant. So, too, if there was an express promise, it should be properly alleged, and proved ; as, that the plalntifi^ worked one month for the defendant, and the defendant j^rowme^ to pay him a specified sum, or that the plaintifi' paid or expended certain money for ' The New York superior court, in ^ {Fells v. VeatDali, 2 Keyes, 152 ; the recent case of Gudlipp v. W7tipple, Smith v. LippincoU, 49 Barb. 398 ; 1 Abbott's Pr. 106, declares the prac- Hurst v. Litchfield, 39 N. Y. 377.] tice of that court to be in accordance "^rfwrtv. (/Vraon, Quincy (Mass.)66 ; with this decision of the court of ap- Hanover v. Turner, 14 Mass. 237 ; New peals, and that the old indebitatus Bedford v. Chase, 5 Gray, 28. count in debt for goods sold is suifl- ' People v. Supervisors, 7 Hill, 171 ; cient. Supermsors v. Morgan, 2 Keyes, 280, ' Supermsors v. Morgan, 2 Keyes, 286 ; Monson v. WUliams, 6 Gray, 416. 277. SEC. II.] THE COMPLAINT. 205 necessaries on account of the defendant, and the defendant prom- ised to repay him, etc. In such cases the promise is the " fact constituting the cause of action " which is to be proved in evi- dence, and the labor oi money expended, the consideration to support it. Where there is an express promise to pay, the prom- ise itself, having a sufficient consideration to support it, is the ground of the action, and the plaintiff need set forth no other facts to sustain his action ; but, in the absence of an express prom- ise, every fact necessary to fix the liability of the defendant, and to show him under a legal obligation to pay the demand, should be stated in the complaint. Such at least appears to me to be the rule indicated by the Code, and coming within the spirit of the decisions made under it which have been cited. [*266] '"All account may be stated generally, and it is not necessary to set forth the items thereof in detail. The Code, however, makes provisions for either party to obtain a copy of the account of his adversary. ' The plaintift^'s statement will be sufficient if he specifies the general nature of the account, as that the defendant is indebted to him in a specified sum for labor and services performed for the defendant, and a further sum for goods sold and delivered, and a certain other sum for the use and occupation of certain premises, amounting in the aggregate to so much, for which he claims judgment." It would be safe also to apply the rule that the various portions of the account, and indeed the whole of it in the aggregate, should be so described in the complaint as to be capable of being distinguished from any other demand of like nature, so that in a recovery thereon though by default, and without other proof than the oath of the plaintiff to the complaint, the record of the judgment and roll may show enough to constitute a bar to any other suit to enforce the same demand. ° Whsn the contrract is in writing it was unnecessary, under the old practice, to state that circumstance in the complaint. Nor even, if the action were upon a promise within the statute ot frauds, was it necessary to aver the contract to be in writing.* A ' Am. Code, 168. ' See this subject discussed, ante. ' Beekman v. Plainer, 15 Barb. 550 ; « 15 Johns. 425, 6 Hill, 33 ; Giibs v Tucker v. BusJiton, 2 C. R. 59, 7 L. 0. Sfash, 4 Barb. 449. 315. 206 STATEMENT OP PACTS. [CH. IV. complaint averring a promise by parol will be supported [■""267] by a promise in writing.' This was held under *the Code, even as applicable to a pleading on the part of the defend- ant." Although at first it was held otherwise under the Code in an action founded on an agreement which would be void under the statute of frauds unless in writing ; ' and also in an action brought upon a collateral undertaking for the debt of another.' [It is now well settled that the complaint need not allege that a contract, which would be void unless reduced to writing and signed, was in fact in writing." So, where a statute requires a three-fifth vote, it is not necessary to allege such a vote. °] Allegation of a new proinise. — In an action on a promise sup- ported by the consideration of a mere moral obligation, as the promise to pay a debt from which the defendant is exonerated by a bankrupt or insolvent discharge, the new promise must be set up as the substantial cause of action, and the old debt discharged under the act should be alleged as the consideration to support it.' It has been held in several instances in this State, that in the ease of a new promise to pay a debt barred by the statute of limitations, the new promise does not create a neio lia- [*268J hility, because the statute *of limitations bars the remedy not the debt.' The old debt, therefore, and not the new promise, should be set forth as the cause of action. [As upon a note given by an infant, but which after ma- jority he promised to pay," or a debt apparently barred by the statute of limitations." Although the complaint show on its face that the demand is apparently barred by the statute of limitations the objection cannot be taken by demurrer; it can ' 15 Johns. 175. Eng. C. L. 413 ; Brickett v. Dans, 21 ^ Dewey v. Hoag, 15 Barb. 365 ; Eil- Pick. 410 ; Waltcrmire v. Westover, 14 Hard v. AvMin, 17 id. 141. N. Y. 30, 31 ; WincheU v. Bmoman, 31 ' Thurman v. Stevens, 2 Duer, 609. Barb. 448, 18 N. T. 558 ; Phillips v " LeRoy v. Sliaw, 2 Duer, 636. Peters, 31 Barb. 351. ' Limngston v. Smith, 14 How. 490 ; ' Hodges v. Hunt, 23 Barb. 150, 152. Btern v. Drinker. 2 E. D. Smitli, 401 : '« Esselstyne v. Weeks, 13 N. T. 685; Amburgherv. Marmn, 4 id. 393; Wash- Waltermire v. Westover, 14 id. 30,21 ; fewrmv. iTVara/rfMt, 7Abb.8,38Barb.37. Butler v. Mason, 5 Abb. 40,16 How « Wolfe V. Supervisors, 11 Abb. 370, 546 ; Sands v. St. John, 86 Barb. 638, 19 How. 870. 33 How. 140, affirmed in court of ap- i 14 Johns. 148, 1 Hill, 585, 4 Barb. S. peals, Oct. 1865, 29 How. 574 ; WincheU C. 174. v. Hicks, 18 N. Y. 560 ; aark^. Atkin- « Biggins v. Scott, 3 Barn. & Aid. 33 son, 3 E. D. Smith, 113. SEC. II. J THE COMPLAIJSTT. 207 only be raised by answer.' If, however, the debtor, for a nominal sum, has been released, and afterward promise to pay the amount unpaid, the action should be upon the new promise alleging the original debt as the consideration ; "^ otherwise, however, if an agreement be made to compromise on a condition which failed for want of agreement of all the creditors.'' So where an attorney, by reason of the statute of limitations, could not collect his costs of his client, but an execution was issued by the client, and the judgment collected, it was held the attorney had a lien for his costs upon the amount collected, and the sheriif was directed to pay the costs to the attorney to whom they equitably belonged.* The Revised Statutes created a presumption of payment simply. The Code is not analogous to those provisions.'] [*269] * In indicating generally the rules of pleading prescribed by the Code, it will not be necessary, nor would it be practicable, within the limits of this work, to enter into a full and particular discussion of the former requisites and qualities of pleading. The object of the present chapter is mainly to inquire what changes the Code has introduced into the former mode of stating the facts which constitute the plaintiff's cause of action. Having considered the subject generally, with reference to the statement of necessary facts in an action on contract, I shall, with- out dwelling further on these matters, proceed to consider the mode of stating facts in other actions, first briefly noticing one or two particular provisions which the Code has made on the sub- ject of pleading. And first : [*2Y0] "^Private statute. — A change is made by the Code in the manner of pleading a private statute. At common law ' the court did not take ofiicial notice of a private statute, and, therefore, when a party had occasion to reh' on an act of this description he was required to set forth such parts of it as were material.' By the Code, however, ' Sands v. St. John, 36 Barb. 628, 23 ' Durgin v. Ireland, 14 N. T. 322. How. 140, affirmed in court of appeals * Higgins v. Scott, 3 Barn. & Add 22 Oct, 1865, 29 Ho-w. 574 ; Lefferts v. Eol- E. C. L. 413. lester, 10 id. 383 ; Humphrey v. Per- ' New York Life Ins. Go. v. Govert, 6 sons, 23 Barb. 314 ; Fogal v. Pirro, 17 Abb. N. S. 171. Abb. 114 ; Wagoner v. Jermain, 3 Den. ^ 1 Bl. Com. 85. 306. ' Stepb. PI. 347. ^ Sterns v. Twppan, 5 Duer, 294, 299, 800. 208 STATEMENT OF PACTS. [CH. IV. " In pleading a private statute, or a right derived therefrom, it shall be sufficient to refer to such statute by its title and the day of its passage, and the court shall thereupon take judicial notice thereof."' [If a private statute contain a section of a public and general nature, the courts will take judicial notice of it." The statute laws of another State must be pleaded in the same manner as other facts, and a general averment that by the laws of that State a certain conclusion results, is insufficient.'] It is sufficient, in a pleading, to aver generally that a contract sought to be enforced is in violation of some municipal ordinanee or enactment founded upon a' statute. It is not necessary to plead the statute specially.'' In declaring now for offenses against a penal statute, such as the excise laws, gaming, etc., the Code, it is said, has abrogated the statute which authorized a declaration to allege the words of, and refer to, the statute. The plaintiff must now, as previous to the Revised Statutes, state the special matter upon which the action arises.^ Judgment. — In pleading the judgment of an inferior court of limited or special jurisdiction, the law 'in this State, down to the time of the passage of the Code, was, that a general averment of jurisdiction was not sufficient, but the specific facts conferring the jurisdiction must be stated.' P^)ven that the cause of action arose within the jurisdiction of the court.'] The Code has [*271] made a change in this respect similar to that * made in the manner of pleading the performance of a condition pre cedent. The judgment or determination of such court may now be generally stated " to have been duly given or made," and, if the allegation be controverted, the party pleading (as on the performance of conditions precedent) is boimd to establish on the trial the facts conferring jurisdiction.' K not controverted of course the jurisdiction is established for the purposes of the trial without proof. [This section does not apply to foreign judg- ' Code, § 163. 8 Turne,r v. Bdby et aX., 3 Comst. 193 ; « Brelz V. Mayor, 4 Abb. N. S. 258, 34 Barnes v. Sarris, 3 Barb. S. C. 603 [4 How. 130. N. Y. 374] ; Foster v. Hazen, 12 Barb. « Throot V. EaUli, 3 Abb. 25 ; PUn- 547. ney v. Phimiey, 17 How. 197. ' Read v. Pope, 1 Cromp., Mees. & * Beman v. Tugnot, 5 Sandf. 153. Eosc. 301. ' Morehouse et al. v. Grilly, 8 How. ' Code, § 161. 431 ; Abhott v. New York, etc., 12 Abb. N. S. 465. SEC. II.] THE COMPLAINT. 209 ments, and in pleading them facts showing jurisdiction of the person and the subject-matter must still be pleaded.' The pleader must allege substantially, in the language of the Code, that the judgment was " duly given or made." "] In eases of libel and slander, the Code has also altered the rule of pleading in this class of cases. It is not now necessary to allege in the complaint any extrinsic fact for the purpose of show- ing the application to the plaintiff of the defamatory matter out of which the cause of action arose ; but it is sufhcient to state generally that the same was published or spoken concerning the plaintiff, and if such allegation be controverted, the plaintiff shall be bound to establish on the trial that it was so published or spo- ken.' This does not, however, render it unnecessary to aver in the complaint the meaning of the words themselves, when such meaning becomes essential to the cause of action.'' As where, for example, the words standing alone do not, as a matter of law, impute a criminal offense, there should be an averment showing that the words were used in a sense intending to impute such an offense. [It is not slander, per se, to charge one with a military offense, as desertion."] Such averments are necessary to [*272] sustain the action where *words are ambiguous or uncer- tain in their meaning." And when words arc spoken in a foreign language it must be averred that the hearers understood such language.' [The words should be set forth in the language in which they were published, accompanied by an averment of their meaning in English.' But omitting to set forth the words in the language in which i\iej were uttered may be remedied by amend- ment."] The Code, it seems, has changed the common-law rule of pleading in actions of slander in but one particular ; that is, ' Hollister v. BoUister, 10 How. 539; " Pike v. Warmer, 5 How. Pr. 171, McLaughlin v. Nichols, 13 Abb. 244, and see also Fry v. Bennett, 5 Sand, but see Halstead v. Black, 17 id. 338, 54. Special Term contra, which does not « 19 Ohio St. N. S. 430. refer to McLaughlin v. Nichols, 13 Abb. « 6 How. Pr. 99, 3 Cow. 331, 4 Wend. 344, a General Term case. 330 ; More v. Bennett, 48 Barb. 339, 88 » Hunt V. Butcher, 13 How. 538 ; How. 177 ; Parker v. Raymond, 3 Abb. People V. Walker, 3 Abb. 431 ; Mtch v. N. S, 343 ; Wilbur v. Oitrom, 1 id. 375. Oommisdoners, 33 Wend. 135 ; Row- ' 3 Wend. 394, Croke Eliz. 865. land T. Phalen, 1 Bosw. 44 ; Oa/rter v. « Lettman v. Ritz, 3 Sandf. 734, Koezley, 14 Abb. 150. Townsend's Libel and Slander, § 330. ' Code, § 164 ; see 16 Wend. 9, 3 » Dehaix v. Behind, 1 C. R. N. S. 335 ; Comst. 177. Lettman v. Ritz, 3 Sandf. 734, Town- 27 send's Libel and Slander, § 330. 210 STATEMENT OP FACTS. [CH. IV. although it may be uncertain to whom the words were intended to apply, it is no longer necessary to insert in the complaint any averments showing they were intended to apply to the plaintiff; in other respects, the rules formerly' prevailing remain unchanged.' In the case of Fry v. Bennett^ the sufBciency of a complaint in a ease of libel was considered with reference to the change effected by section 164 of the Code, and the above decision in Pihe V. Yan Wormer concurred in. It was said by the court, that where the meaning of the words is so ambiguous that extrin- sic facts are necessary to be proved to show them to be actionable at all, the necessity of stating those facts by an explicit averment is precisely the same as it has always been, and that this section of the Code does not apply to such a case. Such facts must be proved in order to entitle the plaintiff to recover,' and are mate- rial and issuable in their nature. [The object of an innuendo is simply to explain the application of the words by connecting them with the extrinsic circumstances set out by way of inducement.* An innuendo cannot enlarge the meaning of the words spoken beyond the averment of the intention by which the speaking of the words is introduced, where the words themselves are ambigu- ous, and do not necessarily impute crime.' A colloquium, that is, a statement of the extrinsic facts which enables the court to see that the facts alleged justify the innuendo, is necessary.' Acollo- quium shows that the words were spoken in reference to the mat- ter of the averment. An innuendo is explanatory of the defend- ant's meaning by reference to antecedent matters, set out by way of inducement.' To illustrate, if a libel charges that the conduc- tor of a certain train of cars on a certain railroad, without naming the conductor, used abusive and insulting language to a passenger, the complaint should, by way of inducement, or as is sometimes but improperly said colloquium, allege that the plaintiff was on the day named a conductor of a certain train of cars on the rail- ' 5 How. Pr, 1,6 id. 99. ' Weed v. BibUns, 33 Barb. 315, WU- = 1 C. R. N. S. 338, 5 Sandf . 54. liams's note to Thomas v. Axworth, Ho- ' Kinney v. Nash, 3 Comst. 177. bait, 3. * Blcdsdell v. Raymond, 4 Abb. 446, * Parker v. Raymond, 3 Abb. N. S. Townsend's Slander and Libel, SS 139, 343 ; More v. Bennett, 48 Barb. 339, 38 335-344. The reader should carefully How. 136. examine Mr. Townsend's able and ex- ■■ Townsend's Libel and Slander, §§ haustive work, before ])r('paring a 139,316, 333, Williams's note to 2%£iwi(M pleading in slander or libel. v. Axworth,'S.oha,vt,Z. SEC. II.] THE COMPLAINT. 211 road (naming it), on which were certain passengers, and that the defendant published of and concerning the plaintiif, as such con- ductor, the words following, that is to say : " He turned to one of the passengers and said, " damn you, do you mean to get off? I'll go on if you don't step quick." The same statement with innu- endoes would be as follows : " He " (the plaintiff meaning) " turned to one of the passengers " (meaning one of the passengers upon said train of cars), and said (meaning that plaintiff said to such passenger), "damn you, do you" (meaning the aforesaid passen- ger), "mean to get off?" (meaning off of the ear on said train on which such passenger was), "I'll" (meaning I, the plaintiff, will) " go on if jfou don't step quick " (meaning that if the said passen- ger did not get out of and off of the car in which such passenger was quickly, be, the plaintiff, would start the said train of cars and not allow such passenger , to get ont of or off of said car.)] But these allegations only are to be deemed material in the sense of the Code which the plaintiff must prove, in order to maintadn Ms action. Hence it was said in the same case, that mat- [*273] ters which relate to the motives and intent of the *defendaHt in publishing the libel were not necessary to be inserted in the complaint, because not necessary to be proved to entitle the plaintiff to recover ; and although such allegations might not be liable to rejection as irrelevant, yet they might be justly treated as redundant and superfluous. A mere innuendo cannot be traversed ; such a traverse raises no material issue. But matter of inducement,^ when necessary to be proved, may be traversed by the answer, and such traverse will raise a material issue. It is also said, in the note to this ease, that malice is the gist of the action for libel ; and prior to the Code the declaration had to allege malice, either directly or by some equivalent averment, in which case the defendant's plea of not guilty put the malice in issue. It is said, however," since the Code, that it is not necessary to aver express malice, or want of probable cause, in a complaint for libel. The point relates rather to the onus and measure of proof than the form of the pleadings. If, on the trial, it appears that the publication was made on a just occasion, the burden will ' TcwTisend's Libel and Slander, § " Pwdy v. Oarpenter, 6 How. Pr. 313. 361. 212 STATEMEWT OP PACTS. [CH. IV. thereby be thrown on the plaintiff of proving express malice, and then the question of probable cause may be inquired into.' [But the publisher of a newspaper is not legally liable for malice be- cause a sub-editor refused to publish a retraction."] But, though a mere innuendo is not traversable, yet it may become a material part of the complaint, and the plaintiff is bound by it, the same as by any other allegation, as in the case of Butler v. Wood' where an innuendo was held to have destroyed entirely a cause of action which, without such innuendo, would have been good. [*274] * A complaint for slander is defective, if it does not state that the words were spoken in the presence or hearing of some person,' but the word published, in the complaint, imports that the words were so spoken. ° And it is necessary that the pre- cise words used should be set forth.' The plaintiff must state distinctly what the charge is, so that the defendant may know for what he is sued. Actionable words not alleged in the complaint are not admissible in evidence' [if defendant objects thereto, for that reason, or move, at the close of plaintiff's case, to strike them out,' even to prove malice ;' unless all right to recover therein is barred by the statute of limitations, and the words relate to the same charge or one of a similar character."] Time and place are in general immaterial, and need not be proved as laid in the complaint, and, it seems, tmder the Code, need not in general be alleged," except where they become matter of substance. If not alleged, the court can, in a necessary or proper case, order the pleadings to be made definite and certain by amendment ; at all events it was so held, in an action for slander, since the Code." Nor will a demurrer lie, as it was said in Gray v. JVellis," to a ' Per Bakculo, J. Term, 4tli Dist., 1869. This point was ' Ednall V. Brooks, 33 How. 191. decided by tlie Commission of Appeals, ' 10 How. Pr. 222. I believe, in December, 1869, in an '' Anonymous, 3 How. 406. unreported case arising in Delaware ' IC. R. 134 [Townsend's Libel, §324]. county, wherein George Becker, of " 7 L. 0. 316 [Townsend's Libel and Binghamton, and B. D. Wagner, of Slander. § 329.] Delhi, were the attorneys. See, also, ' Gray v, Ndlis, 6 How. Pr. 290, and Townsend's Libel and Slander, §§ 390, cases cited 392. ' KeA'n y ■ Towaley, ."jl Barb. 386. " Though otherwise under the old ^Howard v. Sexton-, 4 N. Y. 159; system. See 1 Chitty's PI. ,4Denio, Rundell v. Butler, 7 Barb. 262 ; Keen- 80 [Townsend's Libel and Slander, §g holU V. Brrker. 3 Denio, 34!) ; Town- 326, 327]. Bend's Libel and Slander, §§ ;!90, 3112. i« 7 Leg. Obs. 316. '» Van Camp v. Miller, MS., Gen. " 6 How. Pr. 290. SEC. II.] THE COMPLAINT. 213 complaint which alleges that the defendant, on divers days and times, between that day and the commencement of the suit, spoke the words complained of. [By statute in ISTew York (Laws 1871, vol. 1, p. 448, March 19, 1871), it is provided that an action may be maintained by a female, whether married or single, to recover damages for words hereafter spoken, imputing unehastity to her, and it shall not be necessary to allege or prove special damages in order to maintain such action. In such actions a married woman may sue alone, and any recovery therein shall be her sole and separate property.] In other actions for wrong. — The rule as to what facts are necessary to be stated in other actions of tort is entirely similar. The plaintiff should set forth expressly, or by necessary [*275] implication, every * thing which, if denied, he is bound in the first instance to prove, in order to maintain his action. Thus, in wliat was formerly an action of trover, that is, a suit for damages for the conversion of personal property, the old requis- ites of the declaration as to matters of substance are still preserved. The complaint should state that the plaintiff was possessed of the goods as of his own property, and a general allegation of owner- ship, it has been held, is sufficient in a complaint under the Code.* If he has never had actual possession of the goods he need not allege that he was possessed, as where goods of the testator are taken and converted after his death, and before the executor has obtained possession of them, he may say that the testator was possessed of them, alleging his own appointment as executor, etc., and aver that the defendant, after the death of the testator, con- verted them.''' So, too, assignees of a bankrupt who have never had actual possession may declare on the possession of the bank- rupt. If the plaintiff has not the absolute ownership of the chattels, but a mere special property in them, with the right of possession, as a bailee, etc., I suppose, under the Code, he should properly set out the facts showing his special property. The chattels should be described with such certainty that the jury may know what is meant,' though the same particularity is perhaps not required as in an action for the recovery of chattels in specie. ' Seine v. Anderson, 3 Duer, 308. « Id. 1140. » Saund. PI. and Ev., Part 3, p. 1139. 314 STATEMENT OP FACTS. [CH. IV. [An action lies, by an employer, against one to whom liis clerk has paid his money, lost at gambling.'] Under the old [*276] *rule of pleading, also, it was required that the chattels must be stated to be of some value. This is still necessary under the Code ; and the same may be said in regard to the time of the conversion, although it may be laid under a videlicet. In practice it will be found convenient to state both day and place, in order to avoid any objection on the score of the complaint not being sufficiently definite and certain. In regard to the alleged loss of the goods by the plaintiff, and the finding by the defend- ant, these were not only matters of form used to characterize the action, but s^solvAe fictions which should not be allowed to appear in any good pleading under the Code. In respect to a demand for the goods, and refusal of the defend- ant to deliver the same, these should be alleged whenever proof of them is necessary to sustain the action. Thus, in an action against a bailee who has come lawfully into possession of per- sonal property, the complaint should aver a demand of the goods and refusal, or allege that the defendant has sold or destroyed the property, which is equivalent to a wrongful taking.'' And gener- ally, whenever a demand of the goods is necessary to show the plaintiff's right of action, it must be alleged ; and if not alleged it cannot be proved on the trial.' If the taking itself has been wrongful, or the goods have been sold or destroyed, no averment of demand and refusal need be made, inasmuch as it is [*27T] not necessary *to be proved on the trial. A complaint in an action for damages, for the conversion of chattels under the Code, to be good should show that the plaintiff was the lawful owner, or was in lawful possession of the goods, specifying them, with the right of possession, that they subsequently came into defendant's possession according to the fact, and that his right to their possession, if he ever had such right, has ceased, with a demand and refusal, or, if he took or converted them wrongfully, then without such demand and refusal. It should be remarked, further, that where the plaintiff has not an absolute, but merely a special property in the chattels, with the right of possession, the ' Oaussidiere v. Beers, 2 Keyes, 198. ^ Bristol v. Bens, amd Sar. R. B. Co., ' 3 Wend. 406, 10 id. 389. 9 Barb. 159. SEC. II.] THE COMPLAINT. 215 complaint should state concisely the facts, which establish, as a conclusion of law, the plaintiff's right to bring snit, in a similar manner as in the old action on the case against carriers, innkeepers and othei'S, where the defendant's liability was founded on an obli- gation of law, in which cases the declaration was made to contain a concise statement of the circumstances out of which the partic- ular duty or obligation arose.' In an action to recover personal property, which is a substi- tute for the old action of replevin before the Code, similar rules may apply in all respects. The action, however, being partly in rem, the particular property claimed should be more clearly and specifically described in the complaint than in actions [*2'r8] * claiming damages for the conversion merely. Tlie Re- vised Statutes, extending the remedy by replevin to a new class of cases, namely, the wrongful detention of chattels, provide that whenever any goods and chattels shall have been wrongfully distrained, or otherwise wrongfully taken, or shall be wrongfully detained, an action of replevin would lie for the recov- ery thereof, with damages, etc., except in cases specifically men- tioned in the statute.^ The statute also prescribed the form of the pleadings in certain cases, but these forms are superseded by the provisions of the Code. In the recent case of Ker- rigan V. Ray and others,^ it was held that it was not neces- sary that the complaint should correspond with the affidavit, on which is founded the requisition to the sheriff, as to the number and value of the articles. It is sufficient to describe in the com- plaint and claim only the property in possession of the defendant? when the action is commenced. Under the old system there was a distinction between replevin in the cepit, and replevin in the detinet. Replevin in the cepit was held to lie, at common law, where there had been a tortious taking, or where an action of trespass might have been brought ; and in such case our supreme court held that the action would lie either in the cepit or detinet.* If there had been no tortious taking, and the defendant refused tc> deliver the goods on demand, either trover, or replevin in > 1 Chit. PI. 137, 1 Saund. 313, c. n. 2, ' 10 How. Pr. 213. 12 Bast, 89, and see precedents in Chit. * Cummings v. Vorce, 8 Hill, 382, PI. Bkonson, J., dissenting. « 2 R. S. 533, § 1, 3 Edm. St, 540, 316 STATEMENT OF FACTS. [CH. IV. [*279] the detinet, might be maintained.' * In all cases, how- ever, it must be shown in the declaration that the plaintiff has either a general or special property in the goods. An allega- tion that he is entitled to the possession is insufficient. This was so held in the case of Pattison et al. v. Adamsj' which contains a full review of the authorities on the subject. The following remarks by Beaedslet, J., in respect to the pleading in such an action, I apprehend, are fully applicable to pleadings in this class of actions under the Code. " The declaration does not allege that the goods in question belonged to the plaintiffs, nor any thing to that effect, but simply that they were goods and chattels of which the plaintiffs were entitled to the possession. Pleading is a statement of facts, and not of the evidence of facts.^ And if it were true that one who is entitled to the possession of chattels must necessarily have a general or special property therein, still, in pleading his right, the fact, and not the evidence, should be alleged. This is decisive of the question before us, and I choose to dispose of it on this single ground." But in these classes of cases a general allegation that plaintiff is the owner of the prop- erty is sufficient under the Code, without setting forth the plain- tiff's title, as in Heine v. Anderson,* in the ISTew York superior court. The case of Yogel v. Babcoch," at the New York general term, contains the form of a complaint in actions to recover [*280] specific personal property, * and discusses the question as to what allegations are necessary to support such a claim. It was held in that case, on demurrer, that a complaint was good which alleged the conversion and detention of plaintiff's property, and prayed for a specific delivery and damages ; and that the plain- tiff had a right to waive the immediate delivery of the chattel, and await its restitution until he obtained judgment. As to who should be proper parties defendant in an action to recover personal property, the reader is referred to what was said on a preceding page : Ante, Chap. 2, Sec. 111. Actions for wrongs not committed with force, and injuries to ' See Barrett v. Warren. 3 Hill, 348, ' See Allen v. Patterson, 3 Seld. 478. and cases there cited. * 2 Duer, 318. = 7 Hill, 120 ; [Bond v, Mitchell, 3 ^ i ^i^^. Pr. 176. Barb, 304]. SEC. II. J THE COMPLAINT. 217 the relaime rights of persons. — These formed, perhaps, the moat extensive class of actions of tort, and were classified before the Code as actions on the case. In their most comprehensive signifi- cation they were held to include actions of assumpsit, as well as actions arising on tort, but were generally understood as meaning actions of tort arising out of the special circumstances of the case.' They included all actions to recover damages for torts not com- mitted with force, actual or implied, where tlie matter affected was not tangible, or the injury was not immediate, but consequential, as cases of false representation, of breach of duty, negligence, etc. ; also injuries to the relative rights of persons, as for enticing or harboring apprentices and servants, debauching daughters and servants, etc. ; or for injuries to property or the person where the interest is only in reversioij, or the injury is not imme- [*281] diate, but consequential, *and trespass, would not lie.'' In these and a great variety of other cases this form of action was used, and, indeed, was a favorite form of pleading under the old system, and was adopted in preference to any other, when the plaintiff had a concurrent remedy for the ^me injury. It was called an action on the case, because the obligation of the defendant, and his liability to respond to the plaintiff in damages, arose out of the special circumstances of the case ; and it is worthy of particular notice in this place, because the common-law declar- ation in an action on the case comes nearer to the complaint authorized by the Code than any other species or form of pleading of the old system. Indeed, it has been said, since the Code, in more than one instance, that every action is now an action on the case.' And it must be admitted, so far as the frame and structure of a declaration in case is concerned, rejecting, of course, the more formal parts, some superfluity of expression, some useless repeti- tion, and no little technical formality of statement, as not belong- ing to the essentials of pleading, that the old precedents in case will answer very well as complaints in the same class of actions under the Code.* Let us see what the declaration in case was required to contain, and how it compares with a complaint under the Code. ' 1 Chit. PI. 133. 8 See ante, marg. p. 77. s Saund. PI. and Ev. 715 to 725. ■» See precedents in 3 Chit. PI. 28 218 STATEMENT OP FACTS. [CH. IT. [*282] * In actions on the case as it is laid down in the books, the declaration should contain : 1st. By way of inducement, the circumstances under which the injury was committed. 2d. The injury itself. And, lastly, the consequential damages resulting therefrom to the plaintiff. These are generally the same requisites that are demanded in a pleading under the Code. And first : In regard to the inducement as to the circumstances under which the injury was committed, the property or thing in- jured should be described with certainty, and in such terms as are generally used ; and the plaintiff's right or interest in the thing or property should be stated according to the facts, to show that the injury by the defendant has affected such right or interest.' Thus, in a declaration against a common carrier or other bailee, the declaration must set forth, by way of inducement, that he was such common carrier or bailee, or some other fact to show his common-law duty and liability. The declaration must show a duty and the particular contract, or particular duty, from which the liability results.'' But to state merely that it was the defend- ant's duty to do so and so, if it do not appear from the other facts stated that it was his duty, is not sufficient.^ This is similar to the case just cited, in the J^ew York supreme court,^ in which it was held that a simple allegation that the plaintiff, [*283] *in replevin, had the right of possession, was insnfiicient, it being in violation of the rule that pleading is a state- ment of facts, not of legal conclusions, or of the evidence of the facts. And precisely the same rule has been held applicable to a pleading under the Code in the case of City of Buffalo v. Hol- loway,'' in the court of appeals. In that case a recovery had been had against the city of Buffalo, for neglect in failing to keep up lights, guards, etc., around a pit that had been excavated for a sewer. The city of Buffalo then brought suit against HoUoway, who had made the excavation under a contract with the city, and claimed to recover the amount of damages sustained. The com- 1 1 Saund. PI. and Ev. 738, 739. •> Pattison v. AOams, 7 HUl, 126. ' Id. 693. » 3 Seld. 493. • TolUt V. Sherstone, 5 M. & W. 383. SBC. II. J THE COMPLAINT. 219 plaint, after setting forth the contract, alleged generally that it " then became, and was and continued to be the duty of the defend- ant," etc., to maintain lights, guards, etc., without stating the facts and circumstances to show that such was his duty, and proceeded at once to allege a breach. This was held bad on demurrer. An alle- gation of duty, says the court, is of no avail, unless, from the rest of the complaint, the facts necessary to raise the duty can be collected. When the plaintiff's right, then, is founded on an obligation of law, or an obligation on the part of the defendant to observe some particular duty, the declaration must state concisely the circum- stances which give rise to the defendant's particular duty or liability. The rule applies to actions against sheriffs, factories, inn-keepers, as well as common carriers and other bailees, [*284:] and generally to all actions against * persons who have undertaken an employment or duty, for unskilLfulness or negligence in executing it. ' Nor was the rule otherwise in actions on the case for fraudulent representations or deceit, or for injuries/ to the relative rights of persons. In all instances the declaration should set out, by way of inducement, the facts going to establish the right of the plaintiff, which has been affected, or the duty of the defendant, from which his liability arises. It was in some cases the practice to aver in the declaration, as will be seen in the precedents, after stating the facts by way of inducement, that it thereupon became the duty of the defendant to do the act ; but this, as it was held, was a mere exposition of the legal Kability supposed to result from the previously stated facts, and was super- fluous. Unless the duty resulted, in all cases, from the facts, a declaration simply stating that it was his duty, etc., was bad in substance. The allegation of duty is superfluous, where the facts stated show a legal liability, and useless where they do not." These principles, it will be seen by the cases just cited, are fully applicable to a pleading under the Code.' ' 1 Chit. PI. 307, 1 Saund. PI. and ment of right, of duty, or of obligation, Ey. 730, 731. is nothing but a legal conclusion which ^ Brown v. MoMet, 5 C. B. 599, 1 is entirely superfluous for any purpose Saand. PI. and Ev. 727. of pleading, and, unless justified by ^ This is, in effect, the application to the facta stated in the complaint, is this class of cases of the general rule, nugatory, precisely the same as a discussed on a former page, that facts, mere conclusion of law in actions on and not conclusions of law, must ba contract, in the class of oases hereto- averred in the pleadings. An aver- fore cited. 220 STATEMENT OP FACTS. [CH. IT. 2d. The statement of the injni'y. Under the old system [*285] great care was requisite in framing an action * on the case, so that in the statement of the injury the declaration should not appear to be in trespass or assumpsit. Thus, if the plaintiff sued in case for an immediate, but negligent, act of violence, the declaration should not contain any words importing willful force which were applicable only to trespass.' Nor, in an action against a bailee in case, should the declaration contain words character- izing the action of assumpsit, such as that the defendant, on the delivery of the property, in consideration, etc., undertook and agreed^ These rules, however, since the forms of action are abol- ished, have no application under the Code. In a statement of the injury itself, it is now, as it was under the old system, sufficient to describe it generally, without setting out the particulars of the defendant's misconduct." But in all cases where the injury arises from an act which might legally be done, malice, in fact, must be averred, and the reason alleged is that it must be proved, to entitle the injured party to maintain his action.* Indeed, we everywhere, in every species of action, but more especially in this action on the case, encounter this same prin- ciple, that the facts necessary to be proved in evidence must be alleged in the pleading. Thus, where the act or non-feasance com- plained of was not prima facie actionable, it was necessary to set forth not only the facts going to show the injury com- [*286J plained of, but also the other facts going to show * that it was wrongfully done, as that the defendant, well knowing the mischievous propensity of his dog, or having been requested to remove a nuisance erected by another, maliciously or fraudu- lently, etc., committed or permitted the act complained of.* The words maliciously or fraudtdently, I apprehend, are now super- fluous, the facts themselves in the complaint being required to show the malice, or the fraudulent, or wrongful act, or omission. But in all cases in which it is necessary to prove a scienter, in order to sustain the action, as in a suit against a man for keeping ' 5 T. R. 648, 10 Bing. 113, 5 B. and » 1 Saund. PI. and Ev. 737, and cases Ad. 449. there cited. 2 6 Barn, and Cree. 268. *■ Ic. ' 1 Chit. PI. 403, 3 Dowl. 769. SEC. II.J THE COMl^LAIN-T. 221 a dog used to bite man or sheep,' the complaint, to be good, must allege such scienter or knowledge on the part of the defendant. In an action on an express warranty, the warranty itself, in consideration of the sale, is the cause of action, and no scienter need be alleged ;^ but in an action upon a false representation, or fraudulent concealment in the sale, the complaint, to be good, must aver a knowledge of the fraud on the part of the defendant, because, to support the action, such knowledge must be made to appear by proof on the trial. ° Many cases might be instanced to illustrate this principle. A single one in addition will suffice. In the case of failure of title to goods, where there is neither express warranty nor fraudtilent intention on the part of the seller, a complaint will show a good cause of action without averring either a loarranty or scienter, because neither of them need be proved on the trial, the law implying a warranty of title in [*287] * the thing sold, unless the possession of it be at the time in another.' In a complaint against B, in such case, A need only allege the pui'chase, for a valuable consideration, from B, and delivery of the article which was in B's possession at the time of sale, and the failure of title, claiming judgment for dam- ages therefor. [An allegation that defendant " falsely and fraud- ulently represented," etc., howevei', makes the action sound in fraud, and scienter must be proved, or plaintiff is not entitled to recover.' If a complaint contains allegations which entitle the plaintiff to go on a warranty, or for fraud, the court will compel him to elect iipon which theory he will proceed, and, after he has so elected, will not allow him to change his ground.'] In an action on the case against a master, for the negligence of his servant, it was held that the negligence might be stated as that of the master, without noticing the servant, although it was said, even under the old system, that, as the object of pleading was to apprise the opposite party of the facts, it was more correct, in such ' 1 Chit. PI. 403, 3 Dowl. 769. ' 4 Blackf . Ind. 353. ^ Holman v. Dord, 1 C. R. N. S. 331 ; " Brucker v. Fromont, 6 T. B. 659. [Fowler v. Ahrams, 3 E. D. Smitli, 1 ; ^ jf^o^g v. Noble, 53 Barb. 435, 36 Ross V. Mather, 47 Barb. 583, 1 Greenl. How. 385 ; Marshall v. Gray, 39 id. Ev., § 51 ; Williamson v. Allison, 3 173, 173 ; Bidder v. Whitlock, 12 id. East. 446; Southall v. Migg, 11 C. B. 308; Keeler v. CTar*, l8 Abb. 158. 481, S. C, 4 Eng. L. and Eq. 366; ^ Spring steed v. Lawson, 23 How. Quintard v. Newton, 5 Rob. 72 ; Byxbie 303. V. Wood, 24 N. Y. 607]. 222 STATEMENT OE FACTS. [CH. IV. cases, to state them truly.' This is precisely the doctrine recog- nized under the Code in that class of cases which I have heretofore noticed, of which the decision in Manning v. Wiibech is an example, and it seems to show conclusively that the case of DoUner V. Gibson, even if it had not been since disapproved, could not be safely relied on as a precedent." An averment of the time and place of committing the injury was regarded as material, in a declaration, though the precise time and place were seldom requii'ed to be proved.' Perhaps a state- ment of time and place is also necessary, in a complaint under the Code, in order to render the complaint definite and certain, though I doubt whether a demurrer would lie for such a defect. Where the injury was capable of being committed on several days, [*288] it might be described * as having been committed on such a day, and divers other days and times, between that day and the commencement of the suit.* [Under such allegations in tres- pass, several different injuries may be proved, and, if plaintiff give evidence of one, he is not restricted to that,° and may even be allowed to prove trespasses prior to the day named in the complaint.' A complaint with a continuando may be obnoxious to a motion to compel the plaintiff to state his causes of action separately, but, on the trial, the defendant cannot object to proof of any cause of actioi which is fairly within the allegations.'] So, too, it was suificient tt state generally that the injury was committed in the county at large, though, in cases where local description was required in e\'idence, such local description must be given. There is no reason ^'hy these rules should not be considered as applicable to the Code. 3d. The statement of damages. The damages resulting from the injury complained of were frequently, and in some cases necessarily, stated in addition to the usual conclusion of the dec- laration.' Thus, in actions for tort for special damage, the plaintiff was not allowed to go into evidence of any loss or damage beyond what he had expressly alleged in his declaration," as in an action for enticing away a servant or apprentice, the damages per quod ' McManus v. Orichet, 1 East. 110. Belyea v. Beaver, 34 Barb. 549, 25 N. Y. ^ [Ante, marff. p. 353.] 133. 8 1 Sandf. PI. and Ev. 739. « Id. * 1 Saund. PI. and Ev. 73! ' /liis.i v. Gomstock, 38 N. T. 31 ' Digby v. Fitzharbert . Hobart, 104 a » 1 Chit. PI. 410. 9 1 Stra. 666, B. N. P. 7. SEC. II. J THE COMPLAINT. 223 servitium am.isit must be alleged and proved. [In an action for enticing the plaintiif's servant or apprentice from his employ- ment, the complaint should claim damages for loss of services to the commencement of the action, if the term have not then ex- pii-ed, and plaintiif cannot, in such case, recover for the entii-e term.' A distinction has been intimated between a case where the contract of the servant is by deed and where it is by parol." The parent or master, in such case, can only recover actual — the damages from loss of service — and not punitive damages.^ But, in an action for breach of contract to let a faiiu for three years, the plaintiff is entitled to recover the value of his contract for the entire period immediately upon the refusal of the defendant to perform the agreement.* The distinction between the cases seems to be that in the latter the defendant has been guilty of a breach of contract, of which but one can be committed. In the case of a servant or apprentice, he is the person guilty of a breach of duty, and, although defendant has, at the commencement of the suit, deprived the plaintifi' of services to which he was entitled, the defendant has not the right or the power, in future, to control the servant, and non-constat, but he may return, and the plaintiff' still have the benefit of his services for the remainder of the term for which he is entitled to them.] So in an action for special damages for the speaking of words y\otper se actionable, the special injury or damages must be alleged in the complaint and proved on the trial.' Other cases will readily suggest themselves. [But if the complaint, in an action for injuries received through defendant's negligence, states the actual nature and extent of the injury, and the amount of damages, it need not state that a portion of them will accrue in the future, to entitle the plaintiff to recover that part."] Trefipass to tlie person, or to the property, real or personal. — After what has already been said in regard to the rules of plead- ing in actions on the case, and their general applicability to all ' Hambleton v. Veere, 3 Saund. 170, ney v. Bitehcock, 4 Denio, 461 ; Hunt v and see the elaborate notes to 5tli ed. Wotton, T. Ray. 260. of 1845 ; Covert v. Gray, 34 How. Pr. ^ Taylor v. Bradley, 39 N. Y. 129 450 ; Lems v. Peachy, 1 Hurl. & Colt, and see 1 Albany Law Jour. 265, 839. 518. ' 1 Saund. PL and Ev. 739, 740, 9?T ; ' Lewis V. Peachy, 1 Hurl . & Colt. 518. [but see ante, marg. p. 274, slander oj ^ Govert v. Gray, 34 How. 450 ; see Gut- female in regard to chastity]. ting V. Seabury, 1 Sprague, 522 ; Whit- ^ Wiesenierg v. City of Appleton, 36 Wis. 56. 224 STATEMENT OP FACTS. [CH. IV. classes of injuries under the Code, it. cannot be necessary in this place to consider the subject at any length in regard to [*289] * the various actions hereinbefore classed under the head of trespass. The distinction in the form of action and the mode of pleading between them and actions on the case is abolished, and the same rules generally apply. Those subtile and curious distinctions which heretofore made up so large a share of the learning which pertained to this branch of pleadings have now passed away. The pleader is not required to scrutinize the phraseology of his plead- ing for the purpose of ascertaining whether it contains those apt and suitable words which were necessary to distinguish an action of trespass from an action of case, or an action of case from an action of assumpsit. Thus, in the genuine trespass of the old system, the statement of the injury required the vi et armi " with force and arms," ' and the omission of this phrase was ground of special demurrer. So, also, in the conclusion of the declaration, the trespass was alleged to be " against the peace," etc., or, if not so alleged, the defect might be reached by special demurrer.' It is scarcely necessary to say that these formalities have no place under the Code. The plaintiff in an action for trespass to either real or personal property, resulting in immediate injury, may set out his cause of action precisely the same as in an action for con- sequential damages, or for an injury to his relative rights. He may, however, if he choose, adopt a more general mode of state- ment, and, though required, in all cases, to set forth his [*290] right, title or interest in the subject-matter of the * suit at the time of the wrong committed, yet, his title as actual owner, in an action for damages to personal property, may be de- scribed by averring that they were the goods of the plaintifl", and in an action for damages to real property, that the house, or close, was the close, etc., of the plaintiff.^ If he have a mere special property in the goods, it is said to be sufficient to aver that he was lawfully in possession of them.' I should, however, judge the more proper and correct course, under the Code, to be, very ' Com. Dig. Pleader, 1 Saund. 81, 82. under the Code, gee Seine v. Anderson, « Chit. PI. 409, 1 Saund. PI. and Ev. 3 Duer, 318. 1097. * Id. ^ Saund. PI. and Ev. 1096, and so also SEC. II.] THE COMPLAINT. 225 briefly to state the facts out of which his special property arose, as that he has a lien upon them for work, that they were deposited with him as bailee, etc. The injury should be stated without any inducement of the defendant's motive or intent, or of the circumstances under which it was committed.' [If an act is legal an improper motive will not make it actionable." A mere intent to do a subsequent illegal act will not render the first act unlawful.^ Nor does an intention not to dc) an illegal act constitute a defense, unless the means used for accomplishing the object be legal.*] The word wrongfull/y is usually and very properly inserted, as that the defendant " wrong- fully took and carried away" the plaintiif's goods, specifying them, or that the defendant ''wrongfully entered the plaintifl''8 house or close," describing it, but any other equivalent words, such as unlawfully, forcibly, without leave, etc., would be sufficient, and, indeed, their omission entirely does not seem to be a defect under the Code. To say that the plaintifl!' was the owner and in the rightful possession of certain goods and chattels, specifying them, and that on a certain day the defendant took and [*291] carried them away, or took * and converted them to his own use, to the damage of the plaintifll' of such a sum, I apprehend, is sufficient ; and the same may be said in regard to an action for trespass to real property. It may be observed, generally, in this place, that in all cases, in actions on contract as well as for a wrong, the complaint must show the plaintiff's title, or his authority to sue. Thus, the assignee of a right of action on contract, which the complaint shows was made between defendant and a third party, must set out the assignment and show his interest as plaintiff. And that, too, even though the action be brought by the assignee of a negotiable promissory note, for a mere holder who has no interest in it cannot now, as formei-ly he could, maintain an action upon it." So in an action by a partnership for a debt contracted with the plaintiffs 1 Saund. PI. and Ev. 1096, and so also ' Gates v. Lounsbury, 30 Jolins. 437 ; under the Code, see Heine v. Anderson, Lawrence v. Ocean Ins. Go., 11 Johns. 2 Duer, 318. 363 ; Oelancey v. Ganonff, 9 N. T. 9. ^ PioTcard v. Oollins, 33 Barb. 444; * ioimsend'7.Gormnff,23yVend..4A2. McKeon v. See, 4 Rob. 467 ; Avhurn, ' Parker et al. t. Totten et ai., 10 etc., V. Douglass, 9 N. T. 444 ; Muchler How. Pr. 234. V. Mulliollen, Lalor's Sup. 363; Pratt V. Potter, 31 Barb. 589. 29 226 STATEMENT OP FACTS. [CH. IV. and a partner since deceased, his death and the survivorship of the plaintiffs should be alleged.' And so also in case of a defendant who was a joint contractor. And if the plaintiff' be an infant, and sue by guardian, the complaint must show how, by whom and when the guardian was appointed, and that A is an infant. If he sue as committee or receiver, he must show how, when and by what court or officer he was appointed. A general averment that he was duly appointed has been held to be insufficient.' A [*292] complaint against a committee must show by what * court or authority the debtor was declared an habitual drunkard, and the custody of his person and estate awarded to the defendant, or a demurrer will lie.' If the plaintiff sue as executor or admin- istrator, he must aver his appointment and show his title as such. But a simple allegation of his appointment, it seems, is sufficient, and profert of letters testamentary or of administration is not necessary." [A corporation plaintiff, created by the laws of this State, need not prove its existence unless the opposite party shall have specially pleaded that there is no such corporation.' It is, therefore, held to be unnecessary to aver in the complaint that the plaintiff" is a corporation. And this, too, under the Code ;' other- wise in case of a foreign corporation.'] It may be also properly observed, in this place, that the ques- tion on an objection to the sufficiency of the facts stated in the complaint, is not whether the complaint is perfect and embraces every thing which might properly be embraced, but simply whether there are facts enough stated to sustain the action, and entitle the plaintiff, if he prove such facts, to a judgment. Thus it was held in Luddington v. Taft' that in an action for an account between partners, a complaint which set forth a partnership, a dissolution of such partnership, the existence of unsettled accounts, and a balance in favor of the plaintiff, constituted a good cause [*293] of action and was sufficient * and it was not indispensable 1 1 Johns. 34. « 2 R. S. 458, § 3, aa amended in 1864, « 4 Denio, 80, 7 Barb. 204 [Eurlhut v. 2 Edm. Stat. 477. Toung, 13 How. 444; see Stewart v. * Union Mut. Ins. Go. v. Osgood and Beebe, 38 Barb. 84 ; Ooope v. Bowks, 28 Allen, 1 Duer, 707, 5 Bosw. 716 ; Phcenix How. 10, 18 Abb. 443, 42 Barb. 87, as Ba7ik v. Bonnell, 40 N. Y, 410. to the degree of particularity required ' Watermlle Manufacturing Go. v in sucli cases]. Bryan and Brown, 14 Barb. 182. ' Ball V. Taylor, 8 How. 428. » 10 Barb. 447 ; see, also, RicJiardsY * Welles. Ex'r, v. Webster, 9 How. P. 251. Edrick, 17 Barb. 260. SEC. II.J THE COMPLAINT. 227 on the part of the plaintiff to set forth all the matters in detail necessary for a full and final account. Complaint in equitable oases. — Having thus presented these general principles in relation to the subject of the manner of the statement of the facts by the plaintiff, in the complaint, it remains only to be added that they are equally applicable to every class of action, as well as to every kind of relief — to a suit for an injunc- tion, for the construction of a will or other instrument in writing, for the foreclosure of a mortgage and for the partition of lands, as well as to an action of trespass to the person or property, or for the recovery of real estate, or for a mere money demand on contract. They were well applied by Justice Sill, in the case of Aldrich v. Lapham,^ in an action brought to foreclose a mortgage where there were infant defendants, and the complaint did not allege the requisite facts to show what the interests of the infants were. The court, in denying the application for judgment, says : " The rule applies now, as heretofore, that the judgment must be secundum allegata et probata. The complaint must state the facts which entitle the plaintiff to judgment, and, where they are not admitted, which, as against infant defendants, is never the case, they must be sustained by legitimate proof. In the present case both these essentials are wanting." The same doctrine was also applied in Livingston v. Tanner.^ The pleadings in equity, though less technical than [*294] * those at law, were yet always framed with a similar regard to certainty and uniformity, and in equity, as at law, it was held that there was a regular order and method in which the pleading should display the grounds of the suit. Thus it is said by Judge Stoey, in his Equity Pleading, that every fact essential to the plaintiff's title to maintain the bill and obtain the relief, mast be stated in the bill, otherwise the defect will be fatal. For no facts are properly in issue, unless charged in the bill, and of course no proofs can generally be offered of facts not in the bill, nor can relief be granted for matters not charged, although they may be apparent from other parts of the pleadings and evi- dence.^ The rule, however, indicated in the latter clause of the > fi How. Pr. 139, 1 C. R. N. S. 408. » Story's Eq. PI., 8 258. ^ 13 Barb. 481. 228 STATEMENT OF FACTS. [CH. IV last sentence, is somewhat modified by section 275, Code, which provides that : "The relief granted to the plaintiff, if there be no answer, cannot exceed that which he shall have demanded in his complaint ; but in any other case the court may grant him any relief consistent with the case made by the comjjlaint, and embraced within the issue.'" The complaint should be sufficiently full to enable the court, upon the proof or admission of all the facts contained in it, to grant the relief sought, and, if not, it is objectionable on demurrer for insufficiency.'' The court must be able to see that the plain- tiff has sustained, or is threatened with a legal injury." [*295] * It was also a general rule, in equity, that whatever was essential to the rights of the plaintiff, and was necessarily within his knowledge, ought to be alleged positively and with pre- cision.* Certsii-ty was also required in a bill of complaint, and the remarks of Judge Stoey upon this point may well be applied to all cases of pleading under the Code, namely, that it is an ele- mentary rule of the most extensive influence ; that the bill should state the right, title or claim of the plaintiff with accuracy and clearness, and that it should in like manner state the injury or grievance of which he complains and the relief which he asks of the court. In other words, there must be such certainty in the averment of the title, upon which the bill is founded, that the defendant may be distinctly informed of the nature of the ease which he is called uj)on to meet.' The other material facts ought also to be plainly, yet succinctly, alleged, and with all necessary and convenient certainty as to the essential circumstances of time, place, manner and other instances. If title deeds or other instru- ments are referred to. they should not be set out in hcBG verba, but the substance of such portions only of them as are necessary to a right understanding of the real matters of the bill.' But it shoijld not state any impertinent or irrelevant matters, or any matters of which the court is bound judicially to take notice, such as matters of law, legal presumptions, or recite public acts or laws.' These ' See next section of this chapter. Keyes, 58S ; Wright v. Delafield, 25 « Tollman v. Qreen, 3 Sandf. 437. N. T, 266. See Moak's note to Clarke's ' Mann v. Moreioood, 5 Sandf. 54 ; Cli., marg. p. 502]. Smith V. Lockioood, 13 Barb. 209. « Story's Eq. PI., § 34. « Coop. Eq, PI. 6. 'Id., I 24. ' [Borne Excliange Bank v. Bames, 1 SDC. II.J THE COMPLAINT. 229 principles are entirely similar to those already noticed [*296] *as applicable to pleadings at law, and thus far perfect harmony and uniformity in the pleadings characterize both systems. The points of difference, as we have already noticed in a previous chapter, have been abolished by the Code, and the two systems blended into one. In equity, though it was a general principle that the plaintiff's title could not be set forth in the alternaUve, yet, a bill might sometimes be brought with a double aspect, as where the title to relief would be the same in each case, the plaintiff might aver facts of a different nature, which would equally support his appli- cation.' A bill with a double aspect was proper, where, upon his case, the complainant was doubtful as to which of two kinds of relief he was entitled, or where the particular relief depended upon a fact of which he was uncertain.^ But in such case the prayer for relief must not be inconsistent with the case made by the bill. Thus, a bill could not be filed distinctly charging a will to be void, and praying that it might be declared void and can- celed ; or, in case it should be held valid, then praying a partition of lands devised in it.° The complainant, instead of alleging that the will was void, should have stated that he was ignorant whether it was valid or invalid, and should have shown that he was not in a situation to have that question settled by a suit at law ; and he should then have prayed that the question might be settled under the dii-ection of the court, and that he might have the [*297] * relief to which he might be entitled in the alternative, that is to say, either the will declared invalid, or a parti- tion of the estate.'. It has been already noticed that, under the Code, alternative relief may be prayed, and the proper relief, whether legal or equitable, administered in the same action ; but in such eases the relief prayed must not be inconsistent." Statutory provisions relative to actions concerning real jyroperty. — There are certain provisions of the statute relative to the state- ment of facts in a complaint in an action concerning real property, which may be here properly noticed. The Code provides that : ' Story's Eq. PI. 254. <■ 1 Barb. Ch. 339. ^ Lloyd V. Brewster, 4 Paige, 537. ' 3 Sandf . 668, 6 How. Pr. 181. ' [Bmne Exchange Bank v. Eames, 1 Keyea, 588]. 230 STATEMENT OP" FACTS. [CH. IV. " The general proYisions of the Kevised Statutes relating to actions concerning real property, shall apply to actions brought under this act, according to the subject-matter of the action, and without regard to its form." ' Thus, the general provisions of the statute relative to what a complaint shall contain, in an action to recover real property, or for dower, or for the partition of real estate, or to foreclose a mort- gage, etc., are still in force. In an action to recover real property it is sufficient for the plaintiff to aver that, on some day to be specified, and which should be after his title accrued, he was posses- sed of the premises in question, describing them,^ and, being so possessed, the defendant afterward, on some day to be stated, entered into such premises, and that he unlawfully with- [*298] holds from the plaintiff the possession * thereof,' to his damage, any nominal sum the plaintiff may think proper to state.* If the plaintiff claims any undivided share or interest in any premises, he shall state the same particularly' in such dec- laration.'* [The premises should be sufficiently described in the complaint that they may be identified and possession delivered from the description given." Ejectment may be brought by a vendor against a vendee, in default, without notice to quit or demand of possession, so that none need be averred.' The plain- tift' must have a legal, and not an equitable title.'] So, too, in an action for the recovery of dower, the statute pro- vides that the plaintiff shall state that she was possessed of the one undivided third part of the premises, as her reasonable dower as widow of her husband, naming him. In every other ease for the recovery of real property, the plain- tifl" shall state whether he claims in fee, or whether he claims for his own life or the life of another, or for a term of years, specify- ing such lives or the duration of such term.' And in case the action be not brought for dower, the declaration may contain sev- > Code, § 455; see, also, §§ 448, » Id., § 9; Olaxk v. Grego, 47 Barb. 471. 599. = As provided in the subsequent sec- « 3 R. S. 304, § 8, 3 Edm. Stat. 313 ; tion. See § 8, 3 B. S. (3d ed.) p. 304. Budd v. Bingham, 18 Barb. 494 ; St. " [Taylor v. Crane, 15 How. 363]. John v. Northrop, 33 id. 36 : Okndorf * 2 E. S. 304, §§ 7, 8, 2 Edm. Stat. v. Oook, 1 Lans. 37. 313 ; Warner v. NelUgar, 18 How. 403 ; ' Pierce v. Tuttle, 53 Barb. 155 ; Ho Bndgn v. Shearman, 14 id. 439 ; People taiing v. Hotaling, 47 id. 163. V. Ma/yor, 17 id. 61, 8 Abb. 7, 38 Barb. « Peek v. Newton, 46 Barb. 173. 240 » Ola/rk v. Crego, 47 Barb. 599. SEC. II. J THE COMPLAINT. 231 eral cotmts, and several parties may be named as plaintiffs jointly in one count and separately in others.' The notice required by section 12 of the same title of the statute is no longer necessary, it being inconsistent with the practice and general rules prescribed by the Code. It has been held," by the ISTew York superior court, that in every action under the Code, where a pluintiif relies upon his title to real estate, he must set forth in his complaint the facts which prove that the title which he claims exists, and that the mere [*299] averment that he has such title is insufficient. * Thus, in an action to recover real estate, it was held that a complaint which merely alleged that the premises in question were conveyed by warranty deed to the plaintifl', that he thereby became seized by a lawful title of the said premises, that the defendant is in pos- session of the same, and unlawfully withholds such possession from the plaintiff, is insufficient as not containing fects sufficient to constitute a cause of action. The complaint, it seems, con- tained no allegation that the plaintiff had been in possession of the premises, and that, being so possessed, the defendant entered and unlawfully withholds, etc. All the facts which the complaint avers, says the court, may be true, and yet the plaintiff not have a shadow of a right to , the judgment which he demands. The bare allegation that the pMntiff was seized of the premises by a lawful title, and that the defendant unlawfully withheld, etc., were held to be mere conclusions of law, which, as they did not follow from the facts previously averred, must be wholly dis- regarded. In the case of Livingston v. Tanner,^ at a general term in the third district, it was held that, though the plaintiff might recover for the use of the land, in the same action brought for the recovery of the laud itself, yet, in order to entitle him to prove the value thereof, and to recover the same, his complaint shotald contain in substance the same allegations which the Revised Statutes required to be inserted in the suggestions for the recovery of mesne profits. If these allegations were not made the [*300] * plaintiff would not be allowed to prove the yearly value ' 3 H. S. 304, §§ 10, 11. 8 12 Barb. 481. ' Laiorence v. Wright, 2 Duer, 673. 332 STATEMENT OP FACTS. [CH. IV. of the land, nor recover its use in the action, but would be driven to a separate action. [The plaintiff' may have a separate action for mesne profits ;' or, if the complaint in the ejectment suit contain proper allegations, he may recover damages in that down to the time of trial f and the jury may give interest.'] In regard to the proper parties, plaintiffs and defendants to an action of ejectment, and when the action will lie, the reader is referred to what was said on the subject in the second and third sections of chapter two of this work. A complaint in dower, it seems, need not allege that the defend- ant is in actual possession of the premises, or that six months have elapsed since the death of her husband.' A complaint for the foreclosure or satisfaction, of a mortgage must state whether any proceedings have been had at law for the recovery of the debt secured thereby, or any part thereof, has been collected." This is a matter of substance required by the statute, and an omission to state it would be ground for demm-rer. If the complaint shows that a judgment for the mortgage debt has been obtained, it must also show that the remedy thereon has been exhausted, that is, that an execution against the property of the defendant has been returned, unsatisfied in whole or in part.' And if such allegation be not made the complaint will also be defective on demurrer.' The mere pendency of a suit at law, it was held, would not bar a bill of foreclosure, but the suit could not be prosecuted without farther leave.' The [*301] * mortgagee might sue at law upon the bond and at the same time foreclose the mortgage in equity. This, under the Code, he may now do in one action, even though the plain- tiff be the assignee of the mortgage [provided the bond or principal debt be also assigned, for without this he would obtain no title to the mortgage. That being an incident to the principal debt, can- not be assigned without it and enforced." Otherwise if it be clearly ' mimm V. Bams, 19 N. Y. 488. See « 2 E,. S. 192, 2 Edm. Stat. 200. Leland v. Touaey, 6 Hill, 328, as to al- ' 9 Paige, 137 [ Williamson v. Cham- legations. plin, Clarke's Ch. 9, and Moali's note, ^ Vanderwort y. Gould, 36 N.Y. 645-6. marg. p. 11. a Id, » 8 Paige, 70, 9 id. 294, 370, Meat's *Tovms6nd v. Townsend, 2 Saudf. 711. notes to Clarice's Cli., marg. p. 11. ' 2 R. S. 191, § 155, 3 Edm. Stat. 198. " Merritt v. BarthoUck, 47 Barb. 253, See Moak's notes to Clarke's Cli.,TOar(7. 36 N. Y. 44; Cooper v. Newland, 17 p. 11. Abb. 343. SEC. II.J THE COMPLAIlSrT. 233 shown that the mortgage, with the assent of the debtor, was assigned by the mortgagee as security for a new and distinct in- debtedness of the mortgagor ;' or if no bond or other evidence of debt, to which the mortgage is collateral, be given therewith." An assignment of the mortgage, " and the moneys to grow due thereon," will, however, carry the principal debt."] If the plain- tifi' has obtained judgment on a collateral security, given for the debt by a third person, he cannot, it seems, foreclose until he has exhausted his remedy on such judgment." In such case, if he sets forth the judgment so obtained, his complaint must also allege the return of an execution unsatisfied, or the defendant may de- mur. If the complaint states that no proceedings have been had at law, etc., such objection may be taken by answer. JSTo provisions, other than for the foreclosure, can, after the action is commenced, be had for the recovery of the mortgaged debt, or any part thereof, unless expressly authorized by the court.' It was supposed that section 274 of the Code would, in an action to foreclose a mortgage, authorize a judgment against the makers of a note or other obligation, for which the mortgage was executed as security, such makers being parties also to the foreclosure suit, leaving the action for the foreclosure to proceed under the order of the court. It was, howevei", ruled otherwise in the case of Cobb V. TJiornton et al.,' the court holding that it had no authority to render a contingent judgment for the balance of the debt re- maining unsatisfied after a sale of the mortgaged premises, [*302] previous to the rendition of the principal judgment * for a foreclosure and sale of the premises mortgaged. The complaint, in an action of foreclosure, should ordinarily allege the making of the mortgage, its date and amount, when and where recorded, and a brief description of the premises. If a bond has been given with the mortgage, it should also be briefly described in the complaint. If junior mortgagees or grantees, or junior judgment creditors are made parties, as they must be in order to foreclose their equity of redemption, it should be stated that the interest of such defendants is junior and subordinate to ' Campbell v. Burch, 1 Lans. 178. '4 Paige, 551 [Moak's note to Clarke's ^ Severance v. Griffith, 2 Lans. 38. Ch., mari/. p. 11], » Belden r. Meeker, 3 Lans. 470. « 8 How. Pr. 66. * 4 Paige, 549 [Moak's note to Clarke's Ch.,ma/rg.p. 11]. 30 234 STATEMENT OF FACTS. [CH. IV. that of the plaintiff. And it will, in general, be sufficient to aver that such defendants have, or claim to have, some interest in the mortgaged premises, by mortgage, judgment or otherwise, but which the plaintiff' alleges is junior and subordinate to the mort- gage and claim of the plaintiff'. [A widow's dower, where the mortgage was executed by the husband during coverture, is not barred, although she be made a defeildant and the complaint allege that she claims some interest in the premises, " as subsequent pur- chaser or incumbrancer or othenoise" for the record only bars her interest, if any, acquired subsequent to the mortgage.' If the plaintiff desire to cut off her dower by the sale or mortgage fore- closure, he should state the facts upon which the question arises, as he insists they exist, according to the rules of equity pleading."] It would be improper to set out the mortgage or bond at any length in the complaint ; and it will be enough to state that the defendant mortgaged the premises on the day mentioned in the mortgage, to secure the payment of the sum therein mentioned, with a brief description of the premises, and that there is due to the plaintiff, for principal and interest upon the mortgage, the sum claimed. ° The complaint must also allege that no proceed- ing has been had for the recovery of the debt secured by the mortgage, or any part thereof; or, if such proceedings have been instituted, the complaint should state what they are and against whom instituted, and that an execution has been returned upon the judgment rendered, and that the remedy of the [*303] * defendant is exhausted therein.* The complaint must also state the relief demanded, which is ordinarily the foreclosure and sale of the mortgaged premises, for the payment of the mortgaged debt, and that the defendant, who is personally liable, may be adjudged to pay any deficiency which may remain. The whole relief to which the plaintiff conceives himself entitled should be stated in the complaint, for if the defendant does not answer the complaint the court has no power to give the plaintiff any other or further relief than that which he has demanded in his complaint. Therefore, the precise judgment which the plain- 1 Lewis Y. Smith, 9 N. Y. 503, 11 Barb. > 2 Mouell's Pr. 317, 318. 153; Lee v. Parker, 43 id. 611, 614, « 3 Monell's Pr. 317, 318, 4 Paige, Moak's note to Clarke's Ch., mr;/. p. 253. 551, 1 Clark, 9. ' Leiois V. Smith, 9 N. Y. 515, Moak's notes to Clarke's Ch., marg. p. 353. SEC. II. J THE COMPLAINT. 235 tiff desires should be claimed in the complaint. So, where, for any purpose, it is contemplated to move for an injunction, a prayer for that purpose should be contained in the complaint,' otherwise the court will not restrain the defendant unless the facts, rendering such restraint necessary, arise after the suit has been commenced, when the injunction may be granted upon affidavit." It is held in the late case of Corning v. /Smith,' that in a suit to foreclose a mortgage, one who claims adversely to the title of the mortgagor, and prior to the mortgage, cannot properly be made a party defendant for the purpose of trying the validity of such adverse claim of title. The decision, however, was rendered in a suit in equity arising before the Code [but the rule undoubt- edly applies to actions under it."] [*30i] * An action for the partition of real estate may be instituted under the Code by summons and complaint, as heretofore by bill in chancery. [The proceedings by petition under the statute were, it seems, abolished by the Code."] The statute ° prescribed that the petition (and also the bill, or, under the present practice, the complaint), shall contain the following matters : 1. It shall particularly describe the premises sought to be divided or sold. 2. It shall set forth the rights and titles of all persons interested therein, so far as the same are known to the petitioner, including the interest of any tenant for years, for life, by the curtesy or in dower, and the persons entitled to the reversion, remainder or inheritance after the termination of any particular estate therein, and every person who, by any contingency contained in any de- vise, grant or otherwise, may be or become entitled to any bene- ficial interest in the premises. 3. It shall be verified by aifidavit. It has been questioned whether the verification is absolutely ■ Emey v. MoCrea, 4 How. Pr. 31. p. 253 ; Lee v. Parker, 43 Barb. 611, = 3 Monell's Pr. 820. 614 ; Walsh v. Rutgers, etc., 13 Abb. 39. ' 2 Seld. 82. [See Moat's note to ' Code, ^ 448 ; Crogan v. Living- Clarke's Ch., marg. p. 352, where the ston. 17 N. Y. 325, 6 Abb. 355 ; Mattsr cases are collated]. of Cavanaugh, 14 id. 258, 261, 23 How. * Moak's note to Clarke's Ch., marg. 358. « 2 E. S. 318, g 5, 2 Edni. Stat. 337. 236 STAl'KMENT OF FACTS. [OH. IT. necessary under sections 156 and 157 of the amended Code. The most safe and correct practice, however, seems to be in all cases to follow the statute and verify the complaint. In case any one or more of the parties, or the share or [*305] quantity of interest of any of the parties, *be unknown to the petitioner, or be uncertain or contingent, or the ownership of the inheritance shall descend upon an executory devise, or the remainder shall be a contingent remainder,, so that such parties cannot be named, such fact or facts must be stated.' It is sufficient in a complaint in partition to allege that the parties are seized as tenants in common. It is not necessary to allege that the plaintiif is in possession of the premises, as that fact is presumed from the allegation that the parties are seized.'' If the premises are held adversely, an action for partition cannot be sus- tained.^ [Except the adverse claim is on equitable grounds.* But an admitted life estate, covering the whole premises, is not, it seems, adverse, and does not prevent the remainder-man from being seized in possession.' And, if the premises are unoccupied, one tenant in common is constructively in possession, so as to entitle him to maintain the action."] If that fact appear on the face of the complaint, it is presumed, under the Code, a demurrer would lie.' If it does not so appear the objection may be taken by answer." Formerly the practice was, that where the legal title was disputed and doubted, the party would be sent to a court of law to have his title established." But the bill wonld be retained to give the plaintiff an opportunity to establish his title at law.'° It was customary also, in some cases, to set forth the conveyance by which the plaintiff held, or the evidence of his title. ]S"ow, however, under the Code, the fact of the seizin may be tra- versed, and the legal title determined, and it is questionable whether it is proper any longer to set forth the convej'ances by which the plaintiff holds, or the evidence of his [*306] * title. All this is matter of proof, and, if the defend- 1 2 E. S. 318, § 7, 3 Bdm, Stat. 337. The former case arose collaterally, no ' 3 Paige, 343. objection having been taken by any ' 3 Barb, Ch. 398, 9 Cow. 530, 5 Denio, party to the action. 385 ; Florence v. Hopkins, 46 N. Y. 183. « 'Beebe v. Gritlin, 14 N. T. 335. 4 Hosford V. Mar will., 5 Barb. 53 ; Oox ' 3 Barb. Oh. 398. V. Smitfi, 4 Johns. Oh. 371. « 3 Paiy-e, 343. » Blaheley v. Calder, 15 N. Y. 617, ' 3 Johns. Ch. 603, 4 id. 371. but see Fleet v. Borland, 11 How. 489. '" 1 Johns. Ch. 14. SEC. II. J THE COMPLAINT. 237 ant deny that tlie plaintiff is seized, it is to be given in evidence on the trial.' In Striker v. Lynoh,^ a partition suit under the Code, the com- plaint alleged that B, and five other defendants, " claimed some right, interest, estate or title in' the lands in question, or some part thereof, but that their claim was illegal, inequitable and void ; yet they claim an interest adverse to the plaintiff, and to the other defendants, and are therefore necessary parties to a com- plete determination of the question involved in the action," and prayed that said B, and the other five defendants, be adjudged to have no estate or title in the land, and be forever barred from claiming the same. This allegation was considered defective on demurrer. "Although section 118," observes Justice Peatt in his opinion in the case, " says that any person may be made a de- fendant who has or claims an interest in the controversy adverse to the plaintiff', yet, I apprehend, something more is necessary to be stated in the complaint than merely that they claim such interest, especially if the claim is controverted. The nature of the claim should be stated, otherwise there wonld be no method of ascertaining whether it could be joined with the main subject of litigation under section 167." In Bogardus v. ParTcer et al.^" it was decided, at the New York special term, that a com- [*307] plaint in partition might set up the claim of one * of the defendants to a specific lien for tooneys paid to extinguish liens on the premises sought to be partitioned, and ask for an account to be taken of such advances. The claim of one defend ant, it was said, may be disj)nted by either of his co-defendants, as well as the plaintiff, and these claims may be tried and settled in a partition suit, if they involve interest in, or liens on, the property sought to be partitioned. [This is clearly not good law, ordinarily where the claim is against one of the defendants.' If, however, it is against all the owners, so as to constitute a valid claim against the plaintiff, the rule may be otherwise.] The Code prescribes that proceedings /br the determination of claims to real property may be prosecuted by action under that ' As to who may apply for partition ' 7 How. Pr. 305. see 3 R. S. 318, §1,3 Bdm. Stat. 336, " Moak's notes to Clarke's Ch,, marg. also act amending, Laws 1853, p. 411,4 jp. 15, SKeyes, 341, 9 Paige, 539, Clarke's Bdm. Stat. 615. Ch. 395, 3 Rob. 676, 4 Bosw. 646, 3 •^ 11 Leg. Obs. 116. Barb. Oh. Pr. 180. 238 STATEMENT OF PACTS. [OH. IV. act, without regard to form, etc. The Eevised Statutes particu- larl}^ prescribe what the notice (and so it is presumed the com- plaint) shall contain, to which it is necessary here only to refer.' [The remedy under the Revised Statutes is by action under the Code,' in which the complaint should state substantially what was required in the notice under the Revised Statutes.' The defend- ant may set up any defense legal or equitable which he could in an ordinary action.* The claim must be ad/oerse to the party in possession ; a tenant for life cannot proceed to compel the deter- mination of conflicting claims which relate merely to the remainder •, nor can a remainder-man do so because not in possession.^ Pro- ceedings by notice under the statute may be instituted if the party in possession desire,' but it must be apparent that, except under special circumstances, the remedy hy action is preferable.] Tlie writ of nuisance and the action of waste are abolished by the Code, and wrongs remediable by the action of waste and the writ of nuisance, are now the subjects of civil actions under the Code, without regard to the form of the action, so far as the same can be applied.' For the provisions of the Revised Statutes [*308] resj)ecting writs of nuisance and *actions of waste, and what facts are to be set forth therein, see titles 4 and 5 ; chap. V, part 3.' Second. What matters must not he alleged.. — Having consid- ered thus far what averments and facts are necessary to be alleged in order to constitute a sufficient cause of action, it will be now proper to notice what matters the plaintiff is not at liberty to set forth as part of his cause of action. The general rule is that all the facts necessary to sustain the plaintiff's cause of action must be set forth, and no more. Whatever circumstances are necessary to constitute the plain- 1 3 R. S. 313, § 2, 3 Bdm. St. 332, as How. 354 ; Mann v. Provost, 3 Abb. amended in 1848, 4 Bdm. St. GIO ; See 446. also Laws 1853, p. 53fi, 4 Edm. St. 503, ' Onderdonk v. Mott, 84 Barb. 106. Laws 1860, p. 295, 4 Edm. St. 611, As to where an action lies under the Laws 1864, p. 469, 6 Edm. St. 248. act of 1853 in Woodruff v. Gook, 47 2 Eammond v. Tillotson, 18 Barb. Barb. 304. 333 ; overruling Grans v. Sawi/er, 1 C. « Barnum v. Gains, 33 Barb. 604 ; R. N. S, 31, 6 How. 373; Mimn v. Burnham v. Onderdonk, 41 N. T. Provost, 3 Abb. 446 ; Ilager v. Hager, 425. 38 Barb. 92. ' Code, §§ 450, 451, 453, 458, 454. ' Hammond v. TMoUon, 18 Barb. 8 gee cases cited, Voorhies' Code, 333 ; Eager v. Eager, 38 id. 93. under §§ 450-454. * Peck V. Brown, 2 Rob. 119, 36 SEC. II. J THE COMPLAINT. 239 tiff's cause of action or ground of defense, are, in general, sur- plusage.' Surjplusa-ge taken in its general sense includes unnecessary matter of whatever description ; as 1st, matters wholly foreign and irrelevant / 2d, matters which though not wholly foreign do not require to be stated, such as mere matters of evidence, matter of law, or other things which the court officially notices, matter coming more properly from the other side, matter necessarily implied, etc. ; 3d, unnecessary prolixity in the manner of state- ment." Superfluous or irrelevant allegations also include those which are repugnant to what was before alleged." In pleadings at law surplusage was not a subject [*309] *of demurrer, the maxim being utile per inutile non vitia- tur.' In flagrant cases of this kind, however, the courts referred the pleading to an officer, that he might strike out such matter as was redundant and was capable of being omitted without injury to the material averments.' In some cases, too, the courts have, on motion, ordered the superfluous matter to be struck out of the pleadings, and if there were any vexation, have required the party inserting it to pay the costs of the application." In pleadings in equity impertinence was the same kind of fault which surplusage was at law. Scandal consisted in the allegation of any thing which is unbecoming the dignity of the court to hear, or is contrary to good manners, or which charges some person with a crime not necessary to be shown in the cause. To which may be added that any unnecessary allegation bearing cruelly upon the moral character of an individual, is also scandal- ous.' Scandalous or impertinent statements in a pleading in equity, if excepted to by a defendant, might be referred to a master, and on his report expunged by the court with costs [or may be stricken out by the court on its own motion.'] Irrel&oant and redundant matter. — The Code undertakes by a general provision to embrace all these various cases, and to pro- vide an uniform mode of practice for reaching these defects in pleading. Section 160 provides: 1 See 1 Chit. PI. 314. « Id. 1 Chit. PI. 331. = Steph. PI. 433. ' 1 Barb. Ch. Pr. 41 ; 4 Johns. Ch. «Steph. PI. 431,433. 437. * 1 Chit. PI. 381. 8 People y. A. & 8. R. R., 57 Barb. ' Steph. PI. 431. 304, Gen. T. at Sp. T., 8 Abb. N. S. 133. 240 STATEMENT OF FACTS. [CH. IV. [*310] *" If irrelevant or redundant matter be inserted in a plead- ing, it may be stricken out, on motion of any person aggrieved thereby, and when the allegations of a pleading are so indefinite or uncertain that the precise nature of the charge or defense is not apparent, the court may require the pleading to be made definite and certain by amendment." The Code has not defined what constitutes irrelmant and 7^6(1 undant matter ; we are, therefore, left to determine it by the rules already laid down in various judicial decisions, and from the analogy of the old practice at law and in equity. In its widest sense undoubtedly irrelevant and redundant matter may be con- sidered as embracing every thing that was surplusage in pleadings at law, as well as scandal and impertinence in pleadings in equity. Hence unnecessary prolixity of statement, mere matters of evi- dence, conclusions uf law, matters properly coming from the other side, as well as matters wholly foreign to the controvers}', may be considered irrelevant and redundant. It is to be observed, how- ever, that now as formerly, redundancy and surplusage do not vitiate a good pleading, nor can it be demurred to,' but is waived, unless the objection be taken by motion to strike out, which must be made before demurrer or answer,'' and before noticing the cause for trial,' and within twenty daj's from the time of service of the pleading objected to.* [Obtaining an order extending time to answer without reserving the right to such a motion waives such right and even supersedes a motion already made.' In Ilynds v. Grisioold' it was said by Mr. Justice '"*311] *Hakeis that the 160th section of the Code did not author- ize an application upon motion to strike out every irrele- vant or redundant expression or clause which might be foimd in a pleading. Effect must be given to the word " aggrieved" as used in that section. The matter must not only be irrelevant or redundant, but some party must be aggrieved or prejudiced thereby.' In a subsequent case, however, before the same justice, the language of this opinion was essentially qualified." It was ' Wliite V. Kidd, 4 How. Pr. 68 ; ^ Burke v. Broadway, etc., 34 How. JUsmond v. Van Benscoten, 5 id. 43. 338. Wolton V. Jones, 7 Rob. 164.] « 4 How. Pr. 69, 8 id. 237, 4 Sand. « Sup. Court Rules, 40 ; 3 Sand. 680. 705. [12 Abb. 74, 1 Abb. N. S. 406, Smith v. ' See also 2 Sand. 682, and Bedell v. Oountryman, 30 N. Y, 655.] Siirkle.t, 4 How. 483. s 6 How. Pr. 44. [15 Abb. 387.] » Williams v. ffayes, 5 How. Pr. 475. " Id. Sup. Court Rule No. 28, 1870. SEC. II. J THE COMPLAIJSTT. 241 there said, it was not intended that before such a motion could be granted it mnst be shown that some actual injury would result to the moving party, if the matter sought to be expunged was suf- fered to remain. Every unnecessary expression or redundant sentence should not be expunged. But where entire statements are introduced, upon which no material issue can he taken, the opposite party may be aggrieved by allowing them to remain, and in all cases is entitled to his motion. [Such is the rule in the common pleas of !New York.'] In the case cited. Justice -Haeeis expressed his full concur- rence with Justice Hand, in the view taken of the question in Garjjenter v. West^ The opinion in that case expresses with much clearness and force what we regard as the true construction of this section of the Code : " By irrelevant or redundant matter in the Code, I take it is meant, what is usually understood as impertinent ; for a [*312] pleading in equity is impertinent *when it is stuifed with long recitals, or long digressions which are altogether unnecessary and totally immaterial to the matter in hand." It is like surplusage at law. According to Webster, redundant means superfluous, more than is necessai-y, superabundant ; and irrele- vant, not applicable or pertinent, not serving to support. Both, therefore, may probably come under the head of impertinent. Prolixity may become redundance, and Lord Eldon held that needless prolixity was in itself impertinence. It has been thought that irrelevant and redundant matter should not be struck out unless a party is aggrieved or prejudiced thereby (per Haeeis in Hinds V. Oriswold, supra). With deference, I doubt that this is so to the fullest extent. As to scandalous matter, it is not clear that a person not a party to the record may move to strike it out. And the court, it seems, will do it without application of any one. And impertinence in an answer was always exceptionable. My own impressions are, that as to scandalous and impertinent, irrel- evant and redundant matter, the Code has not in any respect changed the former practice in equity cases. Its effect on what, before the Code, would have been cases at law, is not now ' Isaac V. Velloman, 3 Abb. 464. « ggg reference to cases in this opiu- ' 5 Id. 52, at Special Term, August, ion, which are omitted in the above 1850. extract. 31 242 STATEMENT OF FACTS. [CH. IV. under consideration. If this view is correct, the ad/uerse pa/rty may always be considered aggrieved by scandalous, irrelevant, impertinent, and redundant matter in pleading. I think one may be considered aggrieved by the interpolation of matter into the pleadings in a cause, in which he is a party, for- [*313] eign to *the case ; and he always had a right to have the record expurgated for that reason, without reference to the question of costs. If relevant it cannot be scandalous. And a few unnecessary words will not make a pleading irrvpertinent. And courts should be liberal, especially until our novel system of pleading shall have become better settled and understood. Every fact, direct or collateral, tending to sustain the general allega- tions of the bill, may be inserted, if done in a proper manner." These views may be considered as embodying the settled rule of practice throughout the State.' In a later case '' the same jus- tice who delivered the opinion in Mynds v. Griswold intimates that he would not grant an order, striking from the pleadings un- important redundant matter, which was not prolix, and does not tend seriously to prejudice the defendant or incumber the record. This would seem to establish the rule very nearly where it stood uuder the old equity system. Thus, for example, an exception for impertinence, founded on a few unnecessary words, was not allowed, unless they might lead to the introduction of improper evidence,' and a short sentence, although it contained no fact or material matter, and was only inserted in a pleading from abundant caution, was not deemed impertinent. It being said by the court that the practice of taking exception to such [*314] trivial matter is not * to be encouraged,* the tendency of the decisions of our courts, since the Code went into effect, with some few exceptions, is the same. The practice of taking exceptions to trivial and unimportant allegations, by motion to strike them out as redundant and irrelevant, is not encouraged, and, so far as my observation extends, these motions are generally granted in those cases only where, first, the opposite party might in some respect be aggrieved, should the redundant matter be • [Fammht v. Stchn, 53 Barb. 650 ; ' 5 Paige, 522, 6 id. 239, Story's Eq. Dennis v. Knell 50 i(,l 95]. PL, tj 267. ••' Gl/irk. Jr., v. Harwood et al., 8 " 1 Edw. Ch. 350 How. 470. SEC. II.J THE COMPLAINT. 243 allowed to stand, as where it might lead to the introduction of improper evidence, or the like, or, second, where the matter was needlessly prolix, or would tend to incumber the record. Thus it is held in a recent case,' that matter not essential to establish a cause of action, if it be such as may be proved on the trial in support of the issue, is not irrelevant or redundant, and Justice Welles remarks, in that case, " it does not lie with the defendant to object that the complaint is more specific than the law re- quires, unless some established rule of law has been violated, such as the statement of evidence or the like." Upon the same principle is the case of St. John v. Griffith,^ in which certain alle- gations of fraud were refused to be struck out, no particular injury appearing to result from the superfluous allegations complained of. The court observed that these motions were not to be encouraged, but the pleadings were to be liberally construed with a view to substantial justice between the parties. [*315] *This doctrine that all matters proper to be proved in support of the issue, though not necessary to a complete cause of action, may he set forth in the complaint, has been coun- tenanced by several other decisions. Thus in Follett v. Jewett' Justice Sblden held that the true rule in regard to striking out redundant matter was, that unless it is clear that the facts and cir- cumstances alleged cannot properly be received, such matter will be retained until the trial. So also in Hynds v. Griswold' it was held by Justice Haeeis that any thing which it would be mate- rial tojM'ove %i,pon the trial ought not to be deemed irrelevant. This language was qualified by the same judge in William v. Hayes " by the explanation that " facts which might be material to the issue, as tending to aggravate or mitigate damages, might properly be stated in the pleadings, though not necessary to con- stitute a complete cause of action." Perhaps this qualification is not sufficiently guarded, and indeed it may be said to be not entirely consistent with the rule laid down in this same case, which we have elsewhere assumed to be the correct rule, namely, that facts which go to establish the essential facts in the case ought ' Boot V. Foster, 9 How. Pr. 37. ■* 4 How. Pr. 70. » 1 Abb. Pr. 43. ^ 5 m. 475. ^ 11 Leg. Obs. 193 ; see also 5 Sand. 660. 344 STATEMENT OF PACTS. [CH. IV. not to be inserted. [The evidence upon which a charge of mal- ice in procuring an arrest, the circumstances attending the arrest, and the annoyances to which plaintiff was subjected in making it, cannot be pleaded in an action for damages for the arrest.' The diiBculty will be found to consist in distinguishing between " facts " which are the proper subject of an allegation in pleading, and the mere evidence of those facts, which it is universally con- ceded cannot be alleged, a distinction which, as has been [*31 6] *remarked, cannot in all cases be very clearly pointed out. Thus it is not, I apprehend, strictly correct to say, that what- ever is material to be proved on the trial is relevant '^ nor, that whatever is material on the question of damages, and may be proved, may also be properly alleged in the complaint ; and it was certainly going far to say, as was said in Root v. Foster^ supra, that in an action of assault and battery, the complaint might set forth the business and employment of the parties, the object and intent of the assault, with an allegation that it caused the plaintiff to be ridiculed, etc., for the reason that the motive and intent with which an assault and battery are committed, and the consequences resulting, are material on the question of damages, and may be proved. jSTo doubt it is proper under the Code, as under the old practice, and perhaps necessary te set forth in the pleading such damages as are not implied by law from a breach of a contract, and generally all consequential damages, which do not necessarily arise frcm the injury complained of.* The principle is very clearly illustrated by the case of Slack v. Brown," in which the plaintiffs claimed to recover damages for the loss of a vessel which had been run down by another through carelessness or negligence, without claiming the consequential damages ; the plaintiffs were not permitted to prove that, in consequence of the injury [*317] sustained, they had lost a trip of their vessel, *etc. "The consequential damages were special," said the conrt, " and did not necessarily arise from the injury complained of, and conse- quently were not implied by law. To prevent surprise, the pleader should have stated particularly the special damages sought 1 Solis V. Manning, 37 How. 13. * 3 Barb. S. C. 525, 13 Wend. 64, 13 2 See Wooden v. Strew, 10 How. Pr. id. 390. 48. » 13 Id. 390, 8 9 Id. 37. SBC. II. J THE COMPLAINT. 245 to be recovered." Within this limitation, the dictum in Williams V. Hayes noticed supra, that " facts which might be material to the issue as tending to aggravate or mitigate da'mages, might prop- erly be stated in the pleadings," can be safely applied. But where the damages are the direct consequences of the injury complained of, I suppose matters tending to aggravate them would be regarded as not issuable, and consequently redundant. Where various matters are alleged in aggravation of damages, they ought not to be particularly set forth in detail, as for example in trespass, where the plaintiff declared that the defendant broke and entered his dwelling-house, and forced open the closet doors, drawers, chests, cupboards and cabinets of the plaintiff, it was held, on special demurrer under the old system, that bl-eaking and entering the house was the principal ground of action, and the rest, being matters thrown in to aggravate damages, need not be more partic- ularly specified.' The rule in actions on contract was equally clear, that damages necessarily resulting from a breach of the con- tract are implied in law, and the facts going to show such damages need not and ought not to be specially alleged. This has been held to apply to pleadings under the Code in a case before Justice WiLLAKD, arising on a claim for damages for the breach [*318] of a contract * to convey land.^ The plaintiff set forth in his complaint certain facts tending to enhance the damages resulting from a breach of the contract. The court held this to be mere matter of evidence, upon which no material issue could be taken, and ordered the allegations to be struck out, with costs. And it has been also several times held that matters going merely to mitigate damages ought not to be pleaded.' [No statement of special damages is necessary in an action to recover damages for neglecting to build a house, where defendant agreed to build a house for plaintiff, and plaintiff to convey him a house and lot in payment therefor.^ Otherwise in an action for loss of services of plaintift''s son, in consequence of injuries from defendant's negligence, if plaintiff seek to recover for prospec- • Steph. PI. 371, 3 Wils. 293. MaAulay, 4 Trans. App. 447, 5 Abb. ' MSS. case of Van Valkenburgh v. N. S. 29, Moak's note to Clarke's Ch. Van Saliaaclc, not reported, at Saratoga 507, marg. p. 502. Special Term, December, 1851. * Laraway v. Perkins, 10 N. Y. ' Unless pursuant to S^ 165, see 4 371. Sandf. 664, 6 How. Pr. 15 ; Button v. 246 STATEMENT OF EAOTS. [CH. IV. tive loss.' So in an action for allowing a privy to overflow, evidence that the overflow tainted a well from which plaintifi' was in the habit of drawing water to make beer, and that in conse- quence thereof a brewing was found unmerchantable, is not admis- sible, unless such special damages are pleaded.'' But an action lies for such an injury if properly averred.^ A plaintiff who brings an action for slander, by which he lost his customers in trade, cannot prove that any pei'sons not named in his complaint left off dealing with him in consequence of the words spoken.* So in an action for slander of title, whereby plaintiff was pre- vented from obtaining a loan on a mortgage of the property, or from selling it, it is necessary to name the person or persons who refused, for that cause, to loan or purchase.' An agent for the collection of a note, who fails to take the necessary steps to charge the indorser, is not liable to the owner for the costs of an unsuc- cessful suit by the latter against the indorsers, unless, by some mis- representation or other act, he induced the bringing of such suit.' The special damages must be the natural, and not the remote, con- sequence of the injury. Although plaintiff would have been em- ployed, if he had been able to go at a certain time, but was not, because not able to attend from sickness caused by an imprison- ment, the damages are too remote.'] In the case of the Rensselaer and Washington Plank Road Go. V. Wetsell^ and the case of Stewart and others v. Ronton' the same principle is recognized as a well-settled principle of plead- ing. Justice Haeeis, in his opinion in the former case, says: ' Qilligan v. New York, etc., 1 E. D. N. S. 381. For an extensive collection Smith, 453, 460, 461. of cases where it is necessary to plead ' Soims V. Lias, 16 Abb. 311. the facts showing special damages, in ' Smith's Man. of Com. Law, 98 ; order to recover them, see Sedg. Dam., Addison on Torts, 148, 144, 156, 199, 4th ed., 683 to 686, and additions, p. 204 ; Tenant v. Golding, 1 Salk. 21, 724 ; Voorhies' Code, note to § 142, title S. 0. more fully, 2 Ld. Raym. 1089 ; Special Damages, 1 Chitty's PI. 398 et Hoare v. Dichinson, id. 1568. The seq., 4 Conw. Rob. Pr. 292, 301, 336, 444, declaration in Tenant v. Qolding will 473, 666, 704, 737, 738, 739, 740, 741, be found in 3 Ld. Raym. 324. 799, 800, 802, 804. Mr. Estee, in his '' Hallock V. Miller, 2 Barb. 680, Pleadings and Practice, has many cases Townsend's Libel and Slander, §§ 845, collected. See his Index, title Special 846, but see Evans v. Harries, 1 Hurl. Damages. See, also, Abbott's Forms & Norm. 351 ; Hartley v. Herring, 8 and Pleadings. Term E. 130 ; McLaughlin v. Walsh, ' Hoey v. Felton, 11 C. B. N. S. (108 10 Irish Law R. 19, contra. Bng. C. L.) 142. ' Linden v. araham, 1 Duer, 670, 11 « 6 How. Pr. 68. Leg. Obs. 185. " Id. 71. ' Ayrault v. Pacific Bank, 1 Abb. SEC. II.] THE COMPLAINT. 247 " The motion to strike out redundant or irrelevant matter is anal- ogous to a demurrer, and should, I think, be decided upon the same principles. If the matter cannot be made the subject of a material issue it has no biisiness in the pleading, and ought not to be left there to embarrass the opposite party and the court. Mr. Justice Hand has, in Carpenter v. Wesi, aptly compared this motion to exceptions for impertinence under the former chancery practice. With a single exception [ think the analogy will hold. That exception has already been noticed in several cases. It is that, under the chancery practice, matters of evidence might properly be inserted in a pleading, while they are excluded [*319J *by the theory of pleading adopted by the Code. Any matter which, upon exceptions for impertinence, under the chancery practice, would be struck out as unnecessary and im- pertinent, should, upon motion, be struck out as redundant or irrelevant. I know of no better test than that I have already mentioned, which is, to inquire whether the matter objected to cam in any way he made the subject, or form a part, of a material issue." The " test " referred to is precisely the rule long recognized in chancery, with the exception noticed above. In the consid- eration given to this subject on a former page,' it was intimated that the best rule to ascertain whether matter be impertinent is to see whether the subject of the allegation could ie put in issue, or given in evidence between the parties. Or, as it is better stated in one of the cases there cited, where the action is for relief alone, the cause of acti(m must be stated in such a manner, that the main facts upon which the plaintiff's right to relief depends, " may \)& put in issu&, and tried." Keeping in view the exception noticed by Judge Harris in the above case, that the discovery is abolished by the Code, and facts can no longer be stated merely as matters of evidence between the parties, the rules in regard to expunging scandalous and impertinent matter from the pleadings in equity may be safely applied under the Code.'' This distinc- tion seems to have been lost sight of in some of the cases, [*320] as in Burget v. Bissell,^ where in an action *of trespass, ' See remarks on tMs subject, ante, 5 Paige, 532, 6 id. 339. pages 72 et seq. * 5 How. Pr. 192. « 4 Johns. Ch. 437, 36 Wend. 68, 248 STATEMENT OP FACTS. [CH. IV. for taking timber, an answer was allowed to stand, which, in addition to a general averinent that the title of the timber was in the defendimt, proceeded to set forth at length how such title arose. It is true, as was intimated in that case, that in a pleading in equity facts which might be material in establishing the general allegations of a bill, or were material to the decision of the suit, either as to the subject-matter of the controversy, the relief, or the costs, were relevant and not impertinent;' this is the princi- ple recognized in Howard v. Tiffany^ as applicable to pleadings under the Code, and which perhaps may be regarded as a settled rule. But it is not true that the plaintiff may now, in any form of pleading, state mere matters of evidence which, though proper to be given in support of the issue, cannot themselves be made a material issue, capable of trial. This was held by the same justice to be the rule in action at law in the case of Shaw v. Jane.' The exception referred to seems also to have been lost sight of in the case of the Rochester City Bank v. Suydam, before referred to,* wherein it was held that certain matters ought not to be stricken out of the complaint " as embracing matters of evi- dence merely, for the reason that the convenience of a court of equity is promoted by having as many of the circumstances [*321] appear in the pleadings, and as *few in the proof as pos- sible," etc. Although in the subsequent case of Wooden V. Waffle,'' the same justice recognizes and applies the important distinction alluded to above; and though still maintaining the doctrine that the Code does not provide a uniformity of rules for the statement of equitable as well as legal causes of action, yet admits that, by the Code, the old bill of discovery is abolished, and that pleadings can no longer be used for the purpose of examining the opposite party. The conclusion in that case is substantially in accordance with the decisions in Carpenter v. West, the Rensselaer Plank Road Company v. Wetsel, and similar cases, and is with great clearness and precision expressed as follows : ■ 4 Paige, 174, 5 id. 522. « 5 How. Pr. 216. 2 3 Sand. S. C. 695. ' 6 How. Pr. 145. ' 4 How. Pr. 119, and see also Boot V. Foster, 9 How. 37. SEC. II.J THE COMPLAINT. 249 " Formerly there was no adequate mode of curtailing pro- lixity in a chancery pleading. Exceptions for impertinence would not reach many cases of needless detail. The rule that facts and not evidence must be pleaded had no application. The party had a right to make his pleadings an ' examination ' of his adversary. Of course he might insert his evidence in order to obtain an admission. If the matter was relevant, it was not imper- tinent, and could not be expunged. The Code, however, affords the remedy reqiured. The pleading can no longer' he used as an examination. All that is inserted for that purpose, therefore, may be stricken out as redundant. Statements may be redundant, which are neither impertinent or irrelevant. We may [*322] now * apply to an equity pleading the rule that mere mat- ters of evidence must not he pleaded, although in a sense somewhat different from that of the common law, not as confining the party to the statement of such facts only as are essential to the cause of action or defense, and upon which a material, that is, a decisive issue may be taken ; but as limiting his right to incumber the record with details which have no other bearing upon the case than to establish some other fact affecting the equitable right in controversy." I understand this to mean precisely what was said in Hoiuard V. Tiffany, sup>ra,' and to recognize the old chancery rule of pleading, with the qualification and exception stated in Carpenter v. West, Rensselaer Plank Road Go. v. Wetsel, and other cases above cited. The case of Stone v. De Puga^ involving a similar principle, was decided in a similar manner, and a part of a com- plaint struck out for seeking to discover from the defendant mere matters of evidence. The late case of Wooden v. Strew ° is fully in accordance with these principles, and goes to sustain the general doctrine that the facts and not the evidence thereof must be pleaded. It was an action to set aside a deed for fraud, and the plaintiff in his com- plaint alleged various acts, conversations, omissions and inten- tions of the defendant, tending to show that he committed the fraudulent act for which he was prosecuted. Each of these 1 3 Sand. 375. « 10 How. Pr. 48. = 4 Id. 681. 32 250 STATEMENT OF PACTS. [OH. IV. [*323] allegations, as *was stated by the court in that case, would have beeu relevant testimony upon the trial ; but neither of them, nor all combined, were the fraudulent act complained of. They were accordingly struck out as redundant and irrelevant. To allow these allegations to stand, says the court, " would give the complaint the full effect of a bill of discovery, and would be an examination of the defendant by bill and answer ;" a proceed- ing which is not allowed in any form of the Code. An exception to a matter partly pertinent and responsive must be overruled. A party who seeks to have matter expunged must specify the parts of the pleading which he deems irrelevant and redundant. Where the whole complaint is objected to, a portion of it, not particularly specified, will not be struck out, though it be, in fact, irrelev-ant and redundant.' [An entire pleading or defense cannot be stricken out as irrelevant or redundant ; the objection should be taken by demurrer. °] It was held in the superior court of New York, in the case of Fabricotti v. Launitz^ that an insufficient complaint was not irrelevant, within the meaning of section 160, and that the objection must be taken by demurrer. But if the objectionable matter in the complaint be immaterial, and be united with a good cause of action, it is not demurrable ; the objection must be taken by motion to [*324:] strike out.* The irrelevant or redundant * matter which section 160 of the Code authorizes to be struck out is such as implies that the pleading contains other matters which are material. Thus in Harlow v. Hamilton,'' where a whole answer was bad, on a motion made by the plaintiff to strike out a por- tion of it as irrelevant, under section 160, leaving another portion which contained no valid defense remaining, the motion was denied, the court holding that the party had mistaken his remedy ; his proper course being to demur, or move to strike out the whole answer under section 152 as an irrelevant defense. Of statement of facts showing rights of arrest. — A question has arisen and has been considerably discussed by the courts, ' 6 How. Pr. 353. See Bank v. Ketch- s 3 gaaa. 744. iTig, 11 Abb. 435. ■'2 Sand. 702, 1 Duer, 245 ; [ Wa/rd v. 2 Famaelit v. Stehn, 53 Barb. 50, 5 Ward, 5 Abb. N. S. 145]. Abb. N. S. 338 ; Gollina v. Goggitt, 7 ^ 6 How. Pr. 475. Rob. 81 ; Howell v. Knickerhockcr , etc., 24 How. 475. SEC. II.J THE COMPLAINT. 251 whether, in an action on conti-act where the debt is fraudulently contracted, or the defendant has renioyed, or is about to remove his property, with intent to defraud his creditors, or in any other action where the defendant is a non-resident, or is about to re- move from the State, etc., the plaintiff is at liberty to make aver- ments of such facts in his complaint for the purpose of enabling him to take the defendant's body in execution.' In other words, must the right to arrest the defendant appear in the pleadings ; or, where the facts conferring such right to arrest constitute no part of the main cause of action, can they be stated in the plead- ings without incurring the objection of irrelevancy ? The ques- tion seems to be settled, both upon principle and authority, in the negative. The supreme court of the sixth district, at [*325] general term, held, that * where the cause of arrest exists at the time of the commencement of the action it sliould be stated in the complaint," thus confirming what was intimated by Justice Edmunds in Barber v. Hiibbard," and by Jiistice Htib- BAED in Gridley v. McOuniber^ But this case was taken to the court of appeals and the judg- ment of the supreme court reversed.' In the opinion of the court by Justice Watson, it is said that the legislature never intended to oblige the party alleging the fraud to embrace it in his com- plaint ; and the case of Cheney v. Garhutt " was quoted with appro- bation. In the subsequent case o1 Field v. Stone amd Morse'' these cases were recognized as furnishing a correct rule of decision, and it was held that allegations of fraud in making a contract, inserted in a complaint upon the contract, are redundant and irrelevant, and will be struck out on motion ;' such a complaint, however, it was said, might be amended by striking out these allegations, leaving the simple action upon the contract with- out the ingredient of fraud. This decision, with that of the court of appeals above noticed, is fully in accordance with prior decisions on the same subject made at both general and special terms. 1 Code, §§ 179 and 288. « 5 How. Pr. 467. '' Oorwin v. Freeland, 6 How. Pr. ' 8 How Pr. 47, Same Case, 7 id. 421. 12. ' 3 C. R. 156. « r VooA. v. Henry, 40 N. Y. 124 ; Gon * 5 How. Pr. 414, 3 C. R. 311. naughty v. Nichols, 42 id. 83.] 5 3 Seld. 560. 253 STATEMENT OE FACTS. [CH. IV. [*326] Thus in Barker *v. Russel,^ the general term of the first district, overruling the decision in the same ease at special term, laid dow]i clearly and unequivocally the rule that the plead- ings in an action on contract should not show the facts upon which the plaintiti' claimed the right of arresting the defendant. The case, upon this point, fully sustains the decisions made at the special term in Secar v. Hoorme^ Cheney v. Oa/rbutt^ and Masten V. Scoville.* And the point may, therefore, be regarded as set- tled. In the case of Lee and others v. Ulias and others, in the ]^ew York superior court," the same principle was recognized, and Justice Campbell, after advisement with all the other justices of the court, struck out as irrelevant and redundant from a com- plaint on a promissory note, certain allegations that the goods for which the note was given were fraudulently procured from the plaintiffs. " We cannot accede to the idea," he remarks, " that the question of fraud, where it is in no wise applicable to the judgment to be rendered, is to be put in issue by the pleadings in order to be tried in the action, merely to ascertain whether the case is one. in which the defendant might have been arrested." Similar views are expressed by Justice Haeeis in [*327] * Masten v. Soovill, above cited : " It was never intended that the facts which rendered the defendant liable to arrest, except so far as they may be involved in a statement of the cause of action itself, should be set forth in the complaint. Should any matter, not pertinent to the cause of action, be inserted in the complaint, merely to show that the defendant is liable to arrest, as for example, that the defendant had removed, or was about to remove, his property with intent to defraud his creditors, I can see no reason why it should not be treated as redundant or irrele- vant. " Such facts, of course, cannot for any purpose be material to the issue or traversable, because they constitute no part of the cause ' 11 Barb. S. C. 303 ; 1 Code R. N. S. 57. New York special term in Marcli, 1853.. In the case of Harriii-v. Gone, 10 How. before tlie report of the case in tbe Pr. 259, -Justice Morrts is reported as court of appeals, wkicb established a holding the doctrine overruled by tlie different doctrine, general term in Barker v. Mussel. It is ' 3 C. R. 1, per Jones. to be observed, however, that though ^ 5 How. Pr. 467, per Welles, J. the decision has been but recently re- '' 6 id. 315, per Harris, J. ported (December, ISol), it was made, ' 3 Sand. 737. or at least the case was heard at the SEC. II.] THE COMPLAINT. 253 of action, nor do they, as in cases of an equitable nature, have any bearing whatever on the particular relief demanded. The kind of execution, as was very properly said by Justice Welles, in Cheney v. Garhutt, above cited, is not what was intended by the relief io be demanded in the complaint. The judgment of the court determines the relief granted, but the judgment does not undertake to specify in what manner it shall be carried into execution. The execution is a separate and distinct thing from the judgment, and the plaintiff, it seems, at his own risk, mugt determine when and in what cases he is entitled to issue an execu- tion against the body of the defendant.' Allegations merely going to show the right of arrest are, therefore, neither [*328] constitutive of a cause of action, nor do *they have any bearing upon the relief sought, and consequently are not capable of being put in issue and tried. If inserted in the com- plaint, they will be struck out on motion as redundant." There are, doubtless, some objections to this practice, and plausible reasons can be urged why the judgment record should show on its face enough to authorize an execution against the body. But, until some such provision is expressly made by statute, the prac- tice may be regarded on the authority of the above cases, as well upon principle, to be settled to the contrary. [The following allegations have been held irrelevant : Where the complaint contains a good cause of action against the parties, allegations as to another cause of action in the same count affecting the defendants and other persons not parties.* Many allegations as to a conspiracy.'' So in an action against a com- mission merchant for the proceeds of a sale of goods received from plaintiffs, an answer that the property was shipped in the name of the plaintiff b}' mistake ; that it should have been made in the name of third persons who had made advances to plaintiff for a portion of the property ; and that, by the arrangement between plaintiff and such third persons, the property was to be shipped ■ As to this point, see cases above Nichols, 42 id. 83, 87, 89, note ; Atocha cited, and also Squire v. Flynn, 8 Barb. v. Garcia, 15 Abb. 303. See Matter of S. C. 169. Fatter ion, 2 Benedict, 155 ; Warren v [2 Humphrey v. Broion, 17 How. 481 ; Wendell, 13 Abb. 187.] Muldan v. Doty. 20 id. 236 ; Smith ' x^,^^ ^ Vreeland, 24 How. 316, 13 V. Knapp, 80 N. Y. 589 ; Wood v. Abb. 195, 15 id. 122. Hewry, 40 id. 134 ; Gonnaughty v. * Mussina v. Olark, 17 Abb. 188. 254 STATEMENT OP PACTS. [CH. IV. in the name of the latter and sold on their account. It is a prop- osition to litigate as a voluntary, or a supposed, claim of third per- sons not parties to the suit.' The following have been held not to be irrelevant : A defense that supplementary proceedings have been instituted against the plaintiff by a judgment creditor in which defendant has been enjoined from paying plaintiff;'' a defense which arose after suit, if otherwise valid.'] The reader should consult Mr. Townsend's and Mr. Wait's notes to section 160 of Yoorhies' Code, and Wait's Code, as to when the motion lies and the practice to be pursued. Third. What matters need not he alUged. — Besides the rule at common law, that evidence, or the circumstance merely tend- ing to prove the material facts, should not be pleaded,* there are some other rules tending to produce certainty, and to prevent obscurity and confusion in the pleadings, which may be usefully applied to pleadings under the Code. Thus it is laid down as a general rule, that it is not necessary to state matter of which the court talces notice ex officio^ as, for example, the principles of the common law, or enactments by public statute,' for these the judges are bound officially to notice ; and by the Code, a private statute is sufficiently pleaded by refer- ring to its title, and the day of its passage.' There are various other matters of which the court judicially takes notice ; as of the division of the State into counties, judicial districts, [*329] etc.," the meaning of English words, terms of art, * legal weights and measures, the privileges of officers of the court, etc., etc.," and it is unnecessary to allege these matters in pleading. It is not necessary to state matter which would come more prop- erty from the other side, or to anticipate the answer of the adver- sary. It is sufficient that the pleading should contain a good prima facie case without reference to possible objections not > Aubrey v. Fiske, 36 How. 279, * 20 Wend. 57, 1 Denio, 151. Court of Appeals. ^ Com. Dig. Pleader. ' Oa/rpenter v. Bell, 19 Abb. 258. « 3 Comst. 188, 12 Wend. 79. s Carpenter v. Bell, 19 Abb. 258. See ' Code, § 163. Moak's note to Clarke's Ch. 507 ' By statute. (marg. p. 502) ; Sriort v. Hooker, 40 How. ' See 1 Chit. PI. 216, 226. 420. SEC. II.] THE COMPLAINT. 255 yet urged.' As in a complaint on a bond, or other contract, it is iinnocessary to allege that the defendant was of full age at the time of the contract." The plaintiff is not boand, in his com- plaint, to negative a possible defense, but the complaint is good if it show 3. prima facie right to recover, and so the rule has been held in pleadings under the Code.' Thus, in an action on a note not within the statute, a special consideration need not be alleged, but the want of consideration, if it is intended to be relied upon, should properly be set up by the other side. So, under the old system ' [and so it has been held under the Code.'J When a memorandum or writing is necessary to the validity of the promise, it need not be pleaded to be in writing, though it must be proved to be so on the trial. And, by the old system also, in case of a debt barred by the statute of limitations, or discharged under the insolvent act, the declaration need [*330] not show that the debt was * barred or discharged, and then set forth a new promise to avoid the effect of the statute, but the objection was left to come from the other side [and such is the practice under the Code^]. It is not necessary to allege what the law will pre- [*331] sume. — An apt illustration of this rule is given in *the case of an action for slander imputing theft ; the plaintiff need not aver that he is not a thief, because the law presumes his innocence till the contrary be shown.' The rule is also aptly illustrated by the case of Maynard v. Talcott," an action brought since the Code, in which it was decided, on demurrer, that the complaint need not aver, or show afiBrmatively, that the debt for which action is brought had become due at the time of the commencement of the action. The court will not intend that suit was brought before cause of action accrued for the purpose of supporting a demurrer ; but, if the court is to presume either way, the legal presumption will be that the debt was due before the commencement of the action. The ' Steph. PI. 350. « Butler v. Mason, 16 How. 546 , « Stepli. PI. 359. Sands v. St. John, 23 id. 140, 36 " Doughty v. Devlin, 1 Smith's N. T. Barb. 638, affirmed, in Court of Ap- Com. PI. 637. peals, June, 1865. See Van Nest v. " 4 Johns. 287, 15 id. 434, 6 Hill, 83. Talmage, 17 Abb. 99. 5 35 Barb. 365 ; 17 id. 141 ; ante, ' 1 Chit. PL 836, 3 Wils. 147. marg. p. 367, and cases cited. ^ 11 Barb. S. C. 569. 256 STATEMENT OF FACTS. [CH. IV, true rule, it is presumed, is precisely the same as under the old practice, and if the complaint show, on its face, that the cause of action is not j'et due, it is a good cause of denmrrer ; but no demurrer will lie simply because it is not affirmatively shown that the debt is due, that being a matter which the law will pre- sume.' It is not necessary to allege circuinstances neoessa/rily implied.^ — • As, if a man plead that he is heir to A, he need not allege that A is dead, for it is implied.' Where a complaint on a promissory note set forth that the payee indorsed the same for the [*332] plaintiff, a * demurrer that the complaint did not allege that the plaintiff was the lawful holder of the note was held to be frivolous.'" And it is said that there is no exception to the rule that the holder of a promissory note presumptively establishes his title as owner by the production of the note, and proof of the signatures of the maker and indorser.'' The owner- ship is implied in law, and need neither be averred nor proved.' The same may be said in regard to the fact of delivery.' The rule of pleading that circumstances necessarily implied need not be alleged, was of familiar application both at law and in equity. It is, perhaps, best illustrated in that class of contracts noticed on- a preceding page,' in which a consideration is implied in law, as bonds, promissory notes, etc. The implied consideration was never required to be set forth or proved as an independent fact, distinct from the instrument or obligation itself. So an agree- ment to convey lands may be iinplied from the terms of the written instrument, although it contain no express contract on the part of the defendant ; and if the writing is set forth in lime verba, the defendant's contract is necessarily implied ; so held in Richards v. Edick,^ under the Code ; [otherwise, if introduced, to qualify a prior grant."] But, in actions at law, a matter necessarily implied, though not set forth in the pleadings, was traversable, and an issue ' See cases cited by Hoyt, J. ; May- * ChadioicJc v. Booth, 13 Abb. 249. nard v. TaUott, 11 Barb. 570. ' Sawyer v. Warner, 15 Barb. S. C. 2 Steph. PI. 353, and cases cited. 282. 3 2 Saund. PI. 305. « Ante, marg. p. 220. " Appleby v. Elkins, 2 Sand. 673. » 17 Barb. 260 ; [Newell v. WJieeUr, A ^ James v. Chalmers, 5 Sand. 52 ; Rob. 255.] affirmed. 6 TST. Y. 209, '« NeweU v. Wheeler, 4 Rob. 255. SEC. 11.] THE COMPLAINT. 2S7 [*333] might be taken upon it.' The * rule was also of frequent application in equitable pleadings. Thus, in a bill for partition of real estate, it was not necessary to aver that the complainant was in possession ; it was sufficient to allege that he was seized as tenant in common, etc. ; the possession being neces- sarily implied from the fact of seizure. ° The subject of setting forth damages has already been consid- ered.' Such damages as naturally result from the breach of the contract, or the injury complained of, are implied in law, and they need not, and ought not, to be specially alleged in the com- plaint. Bnt those which result consequentially from the injury, are not implied in law, and must be particularized and specially stated. When a suhject comyprehends a multiplicity of matters, it is not necessary to set them forth in detail, hut where great prolixity would ie avoided, or the allegation on the other side must reduce the matter to a certainty, a general mode of pleading is allowed.* On , a promise by defendant to pay for such necessaries as the plaintiif should furnish a third person, the plaintiff alleged that he had provided necessaries to the amount of a certain sum ; this was held good without specifying what the necessaries were." The general rule above, however, is held subject to a qualification equally general, that where there is any thing specific in [*334] the subject, though consisting in *a number of particulars, they must be enumerated ; as in justifying a general charge of swindling, or claiming a forfeiture on the ground of non-compliance with a condition to furnish water to such as should be willing to take it.° ISTo greater particularity is required than the nature of the thing will conveniently admit. As in an action for injury to goods, if the quantity or other description of the goods cannot, under the circumstances, be conveniently ascer- tained, such certainty will not be required. So upon similar principles, in a recent case under the Code,' a , complaint on an agreement for the conveyance of land, seeking a decree for specific performance, was held good, which did not > See post, ch. 5, § 11. * Steph. PI. 357. ' Jenkins v. Tan Schaack and Wife, ' 3 Bulst. 81. 3 Paige, 242. « 9 Wend. 351. ' Ajite, pages, 282, 316-318, ma/rg.pp. ' Biehards v. MUck, 17 Barb. 360. 33 258 STATEMENT OF FACTS. [CH. TY. set forth a particular description of the land, but described it generally as so many acres of the defendant lying and being in Abington, in the State of Illinois. It was insisted in that case that the complaint ought to have supplied the circumstances which would furnish materials and guidance for drawing a decree or judgment directing a conveyance, with a definite description, so that an officer might go upon the ground and select the farm. But the court was of the opinion that this degree of certainty was not indispensable in a complaint. The complaint, it was held, contained facts sufiicient to constitute a cause of action, and that was sufiicient upon demurrer ; if the defendant required a greater degree of certainty, he must seek his relief by motion to [*335] make the pleading *more definite and certain by amend- ment. The same rule may be extended to most other similar cp-ses ; though, it is thought, it should not be held to apply to an action to recover property in specie, in which a particular description — sufiiciently certain at all events, to enable the prop- erty to be identified — is of the substance of the action. Special provisions of the Code. — There are some special pro- visions of the Code, which, in certain cases, relieve a party from the necessity of making so full and circumstantial a statement as was heretofore essential in a good pleading in such cases. The provisions have already been incidentally noticed in the preced- ing pages of this work, and it is scarcely necessary to refer to them again. They are comprised for the most part in the four following provisions : 1st. In pleading a judgment, it is unneces- sary to state the facts conferring jurisdiction, but the pleader may state generally, that such judgment was duly given or made.' 2d. Performance of conditions precedent ; the facts showing per- formance need not be set forth, but it may be stated generally, that the party duly performed." 3d. Private statute ; it is sufii- cient to refer to such statute by its title and the day of its pas- sage.^ 4th. Libel and slander; it is now no longer necessary to state extrinsic facts for the purpose of showing the application to plaintiff of the defamatorj' matter out of which the cause 'Code, § 161, ante, marg. pp. 270 ' Id,, g 163, ante, raarfir. ^. 370. and 371. ' Id,, § 162. ante, marg. pp. 234 and 235. SEC. II.j THE COMPI.AINT. 259 of action arose.' These rules tend in a considerable [*336] *degree to simplify and abridge the pleadings in this class of cases, and in reference to the subjects to which they are applicable. Fourth. How the facts mustle stated. — The manner of stat- ing the facts in pleading under the Code, so far as respects pre- cision and certainty of allegation, is much nearer the equity than the common-law system ; for, besides those general rules dispensing with every thing like technicality and form, the liberal system of amendments allowed by the Code seems to invite a still greater relaxation of that precise and rigorous formality which the com- mon law enjoined. In equity cases the facts were not required to be set forth "with such decisive and categorical certainty " as at common law." And this, I apprehend, is equally true of the manner of stating facts in pleading under the Code. Perhaps it may be said that the general features of the system established by the Code bear a still closer resemblance to the rules of pleading in admiralty cases, which are drawn from the civil law, and the latter certainly may be consulted and studied with profit, by those who desire to attain a more thorough and scientific knowledge of the subject. Thus, in admiralty pleadings, the greatest liberality is practiced, and the sub- stance merely being regarded, as in the civil law, any neces- [*337] sary *amendments are allowed.' The *same technical minuteness and precision are not required as at common law, but all that is necessary is that the cause of action should be clearly set forth, so that a plain and direct issue may be made upon the charge, and the evidence must be confined to the mat- ter in issue.* Thus in the case of the schooner Hoppet,' Chief Justice Mar- shall remarks that " a substantial statement of the offense upon which the prosecution is founded, must be the rule of every court where justice is the object ; " and, while holding that this general rule is perfectly applicable to courts of admiralty, sitting for the trial of offenses against municipal law, yet denies that " those ' Id., § 164, ante, marg. p. 371. '' 5 Rob. Adm. 333, Dunl. Adm. 438, « Lube's Eq. PI. 18. n ; Story's Eq. PI. 439, 1 Wheat. U. S. R. 9. 206. s 7 Cranch's U. S. R. 389. ^ Danl. Adm. 288, 4 Mason, 543, 3 Wash. C. C. 484. 260 STATEMENT OF FACTS. [CH. IV. teelinical niceties which are unimportant in themselves, and, stand- ing only on precedents of which the reason cannot he ascertained, should be transplanted from the courts of common law into the courts of admiralty." In the case of the Merino,' Mr. Justice Washingtoit alludes to the same principle, namely, that common- law formal precedents are not to be regarded in admiralty infor- mations, adding, that "the material inquiry in the latter cases being, whether the offense is so set forth as clearly to bring it within the statute on which the information is founded." And in the case of the Palmyra,'' Judge Stoey remarks : " There is, indeed, in admiralty proceedings, little ground to insist [*338] upon much strictness of averment, hecause, in * however general terms the offense may be articulated, it is always in the power of the court to prevent surprise, by compelling more particular charges as to the matters intended to be brought for- ward by proofs. In general, it may be said, that it is sufficient in libels in rem for forfeitures, to allege the offense in the terms of the statute creating the forfeiture." [The same rule has been held applicable to pleadings under the Code.^] In these admiralty or civil-law forms of pleading, however, the analogy between which and the general rules enunciated by the Code we are now tracing, though the same technical strict- ness is not required as at common law, yet there are certain well- established principles which govern the manner of making alle- gations in such cases that are never lost sight of. The courts have always endeavored to keep these proceedings within some kind of rule.' Libels, for example, should state the subject-mat- ter with a reasonable degree of certainty, and with such aver- ments as admit of distinct answers being made to them ;' and, unless the particular facts intended to be relied on are stated in the libel, they will not be considered at issue.' ISTor is the blend- ing of distinct or opposite causes of action allowable in libels, under the admiralty practice, in which respect, also, it is strik- ingly analogous to the Code. Thus, in causes of damage, the libel must state each distinct act of injury in a distinct article, ' 9 Wheat. U. S. R. 391. ■• JDimna Paatara, 4 Wheat. U. S. E. « 13 id. 1. 53. 3 Cole V. Jessup, 10 How. 515, 10 N. ' TJie Bostons, 1 Sumn. 338. Y. 96. * T7ie IsabeUa, 1 Paine, 1. SBC. II. J THE COMPLAINT. 261 with reasonable certainty of time and place. ' So, also, in [*339] a * libel for wages, the facts should be stated in distinct articles, according to the usual course of admiralty pro- ceedings.^ It is not allowable to introduce into a libel in rem, and quasi for possession, other matters of an entirely different character ; such as an account of the ship's earnings, with claims of a partner for his advances and wages as master.' Nor can the rights of the United States be blended with the rights of an in- former in the same libel.'' Kor can a general prize allegation be joined with an information and seizure for the infringement of a statute.^ If, in a libel, the allegations are not drawn with accu- racy and reasonable certainty, exceptions may be taken ; as in a libel for wages, the distinct allegations of hiring, voyage, etc." Or, if the facts proved do not sustain the allegation of the libel, it will be dismissed, as where a libel is filed claiming a forfeiture of a vessel, and the facts do not authorize the forfeiture alleged, but show an offense against other provisions of the same law under which the forfeiture is alleged to have accrued ; or where a libel charges the seizure to have been made on water, when it was made on land, such a libel will not support a verdict and judgment thereon, but must be dismissed or amended.' It will be seen , therefore, that the pleadings in cases of [*340] libel in the admiralty courts are closely analogous *to pleadings under the Code. Only the essential facts need be alleged, without regard to particular forms, either in contract or tort ;' less certainty than what belongs to proceedings at com- mon law will sustain a decree, but the allegations must point out the facts so as to give reasonahle notice to the party to enable him to shajpe his defense. If the pleadings are too defective to enable the court to pronounce a final decree on the merits, the objections may be taken even on appeal, and the decree will be reversed, and the cause sometimes remanded with directions to permit the pleadings to be amended ;° for, proceedings in admiralty, it is ' Treadwell v. Joseph, 1 Sumn. 390. ^ Jjnited States v. The Hunter, Pet. ^ Orne v. Town-send, 4 Mason, 541. C. C. 10. ^ Steamboat Orleans v. Phcebus, 11 ' Tlie Sarah, 8 Wheat. 394. Pet. 175. 8 Hall's Prac. 207, 138, 6 How. TJ. S. < The Emulous, 1 Gallis. 563. 484. ' The Dimon, 2 id. 306. » Case of The Divine Pastora, 4 Wheat. U. S. E. 53 262 STATEMENT OP EACTS. [CH. IV. said, must contain, at least, a general allegation of such a nature as will apply to the case.' It will be observed that similar powers as to revising a judgment for a fatal defect in stating a cause of action, and also similar discretionary powers in allowing amend- ments are conferred on our courts by the provisions of the Code. Though so great a degree of technical precision is not required by the Code, as in a common-law action, and though the formal parts of pleading are abolished, and with them whatever may be regarded as a mere mode or form of expression, such, for example, as may be found in all the old precedents in the formal com- mencement and the conclusion of the pleading, yet there are certain logical rules relative to the manner of statement^ [*34:1] as well as to *the substance of the pleading, founded in reason and good sense, which have grown up under the old system, both in law and equity, and which, though not for- mally recognized by the Code, may still in many cases be usefully and safely applied under our present practice." A few of these rules respecting the mode and manner of stating causes of action in a complaint will be here noticed. It may be added that much of what is said on this point will apply equally to the mode and manner of stating a defense by the defendant in his answer. In treating therefore of the defendant's answer in the following chapter, it will be merely necessary on this branch of the subject to refer to what is here said. It was a general rule at common law that a pleading must not be double, that is, that the plaintiif could not allege in support of a single demand several distinct matters, by any one of which the demand might be sufSciently supported.' This, however, did not mean that if he had several distinct causes of action of a similar quality or character against the same parties, he was not allowed to include them all in one suit; on the contrary, he was permitted to do so, though each separate claim or demand con- stituted a separate part of the declaration, technieall}' called a count. The matters set forth in each count should constitute but one distinct subject of action and no more ; and, though this cause of action might consist of a number of circumstances, • Ibid. = Steph. PI. 281. ' Qilitm V. Levy, 2 Duer, 170. SEC. II. J THE COMPLAINT. 263 [*342] yet, if, together, they constituted but *one connected proposition or entire point, the pleading was not double. A violation of tliis rule was called, in technical language, dupUcity, and, as was said by Allen, J., in Cahoon v. The Bank of JJtioa^ (in which the rule was recognized as applicable to the Code), "duplicity does not depend upon the fact that two or more causes of action or defenses are well stated. All but one may be defectively and insufficiently stated, and yet the pleading be double. If the party sets forth, and relies upon, more than one cause of action or defense, his pleading will be double ; and if they cannot, under the Code, be united, his pleadings wUl be bad on demurrer." So, also, in illustration of the same rule, is the case of Pugsley v. Aiken,^ holding that the common-law principle which forbids the union of a cause of action against a testator with a cause of action against his executors personally, is unchanged by the Code, and that such a pleading is still bad for duplicity. A similar rule prevailed in equity, namely, that two or more distinct subjects could not be included in the same suit ;' though two or more causes of action arising out of tlie same, or even dis- tinct transactions, if of the same nature, might be joined against the same parties.'' The offense against this rule was i&cxsiQA. mul- tifariousness, and rendered the bill liable to demurrer.' [*343] Thus, a bill against an * executor for a legacy, and for an individual debt of the executor, is multifarious;" though a bill is not multifarious where it sets up one sufficient ground of relief, joined with another distinct but untenable claim.' So, too, at law, mere immaterial matter could not operate to make the pleading bad for duphcity, even though the surplusage was relied upon by the party pleading it.° The proper way in such a case is to object, not to the whole pleading," but to such parts of it as are immaterial, which, under the Code, can be done only by motion to strike out. In equity, the term ' ' multifarious " applied not only to complaints in which there was a misjoinder of distinct and independent causes of action, but also to the misjoinder of ' How. Pr. 134, and cases there cited. ^ Pugsley v. Aiken, 14 Barb. S. C. * 14 Barb. 114, and cases there cited. 116, and cases there cited. [See ante, marg. pp. 153, 191.] ■" 5 Paige, 137, 3 Barb. Ch. 432. 8 1 Barb. Ch. Pr. 40. ' Steph. on PL 259. " Id. 432, 5 Paige, 137. ' 1 Comst. 233. ' 5 Paige, 65. 264 STATEMENT OP FACTS. [CH. IV. parties.' We have heretofore had occasion to consider each of these subjects under their appropriate titles, and need only refer the reader to what was there said,' and see further as to misjoin- der of actions, post, eh. vii, § 2. The Code seems to have adopted similar rules against duplicity and multifariousness in pleading. In the section providing for the union of causes of action, legal as well as equitable, in the same complaint, it is provided that : " The causes of action, so united, must all belong to one of these classes, and except in actions for the foreclosure of [*34:4] mortgages, must affect all the parties *to the action, and not require different places of trial, cmd must ie separately stated.^ The fifth subdivision of section 144 allows a demurrer on the ground " that several causes of action have been improperly united." This does not refer to the improper statement in a single count of several distinct causes of action, which might be properly joined if stated separately, but only to the misjoinder of different causes of action in the same complaint. [The remedy is by motion to strike out all the allegations not necessary to a single cause of action, on the ground that the count contains more than one cause of action not separately stated.* The moving party may elect as to which cause of action he will strike out the allegations.' It has been said that if the causes of action are separatel/y stated, but not Tvamhered, the remedy is to return the pleading and point out the objection,' but we doubt the correctness of the doctrine, as the plead- ing is certainly good as to one, at least, of the causes of action or defense. There is no technical mode of separating and distinguish- ing causes of action or defenses. Any mode which apprises [*349] the party is sulficient.''] *Each oouni, or to use the language of the Code, each statement, is required singly to contain a good cause of action, and one only." Thus claims for damages for distinct injuries to different chattels, at different times, or, in like 1 Story's Bq. PI., § 274, 1 Comst. 231. SunUT v. Powell, 15 How. 221 ; Badoer « Ante, di. 2and ch. 3. v. Benedict, 4 Abb. 176, 1 Hilt. 414. ' Code, f? 167. ' Waller v. Baskan, 12 How. 38 ; Bene- * Ante, marg. p. 197, post marg. pp. diet v. Seymour, 6 id. 398 ; Dorman v. 677, 683 ; Anderson v. Sill, 53 Barb. Kellam, 4 Abb. 203. 338 ; Henderson v. Jackson, 9 Abb. N. " Oorbin v. Oeorge, 2 Abb. 465. S. 293 ; Bass v. Gomstock, 38 N. Y, 31, ' Hall v. McKechnie, 33 Barb. 344. 36 How. 382 ; Colton v. Jones, 7 Rob. 164 ; *Ante, marg. p. 197, post, marg. p. 683. SBC. II.] THE COMPLAINT. 265 manner, different claims for damages for conversion of property, should be set forth iu separate statements, in the manner indi- cated in Benedict v. Seymour, supra. And so, also, as to separate demands in actions on contract, as for example, for two or more promissory notes ; [but if there are many separate causes of action of the same nature, they may, for the sake of brevity and con- venience, be thrown into one ; as, for instance, a penalty, daily, for running a ferry boat contrary to statute.'] A claim on note, and one on book account ; a claim for work and labor, and [*350] a claim for money lent and advanced, or * paid and expended for plaintiif, these and like causes of action, though properly united in the same complaint, being each a com- plete cause of action in itself, should be carefully separated into distinct statements, so as to avoid the objection of duphcity or multifariousness. A similar doctrine is held in rela- tion to the statement of a set-off by way of counterclaim in the answer." But it has been adjudged under the Code, that where negli- gence is the ground of action, claims for injury to the plaintiff's person and his property, resulting from the alleged negligence, constitute but a single cause of action, and should not be sepa- rately stated. The Code does not abolish the causes of action as they existed before the passage of that act, nor does it in any man- ner define what should constitute a cause of action. It leaves all this matter as it was at common law or in equity, before the Code was passed.' [A complaint does not unite several causes of action merely because it sets forth several grounds, on either of which, defend- ant would be liable,* otherwise, if not, the history of one occur- rence or cause of action ;' a complaint which contains a count upon a common-law and one upon a statutory liability is proper, though both are based upon the same injury ;° and if several causes of action are sought to be united, on the ground that they arose out of the ' Langworthy v. Knwpp, 4 Abb. 115. 3 Caines, 160 ; Boyce v. Broion, 7 Barb. '^ Bmney v. Smith, 6 How. Pr. 420, 81 ; Otis v. Boss, 11 N. Y. Leg Obs. 343, and see post, chap. IV, § 2. en. T. Sup. Ct., 12 Barb. 466, 4 N. 3 Eowe V. Peckham, 6 How. Pr. Y. 253. 329. 6 Ejiig y ffuUer, 10 Abb. 287. * Durant v. Gardner, 10 Abb. 445, 1 * Swift v. Appkbone, 23 Mich. 252. Biirr. Pr. (2d ed.) 172 ; Strong v. Smith, w 266 STATEMENT OF FACTS. [CH. IV. same transaction, a general allegation of such fact is insuflBcient ; the facta showing this should be pleaded.' Matter will not he stricken out if it would mutilate the pleading unnecessarily, by breaking up sentences or clauses which ought to stand or fall together."] If matter entirely irrelevant be mixed up with a single good cause of action, or unnecessary statements with the facts which constitute a single connected proposition, or distinct [*351] point;' or an untenable *claim, or insufficient cause of action be united with a good one,* then a motion to strike out such objectionable matter may be made. The Code requires that the statement of facts should not only constitute a single cause of action, but also that it should be " plain and concise," and " without unnecessary repetition.'" In an early case, under the new practice, a complaint in an action for false imprisonment stated, at great length, all the circumstances, and the particular instrumentality by which the plaintiff was restrained of his liberty, and it was held that it should all be struck out, and that the mode of stating a cause of action, heretofore in use, was all that was necessary." The facts in the complaint must be not only concisely stated, but they must be so expressed as to be jplain, that is, intelligible to those who understand the language, and hence the words are to be understood in their ordinary and popular sense.' The statements must also be made without tj/nnecessaTy repetition. In the StocTchridge Iron Co. v. Mellen, et al." the complaint contained six counts substantially according to the forms of a common-law declaration in an action agaiast common carriers, each count being really the same cause of action, slightly varied as to form and manner of statement. This was held bad ; it being remarked by the court, that " to sustain such a pleading would be to hold that the party is at libertj'^ to choose between common-law pleadings, and the pleadings [*352] * prescribed by the Code." In that case, the plaintiffs were allowed to amend, by making their complaint con- form to the requirements ot the Code, i. e., by setting forth a single cause of action, or in default thereof, all the counts except the 1 Flynn v. Bailey, 50 Barb. 73. « Shmo v. Jane, 4 How 119, 3 Code * Franklin v. KeeUr, 4 Paige, 383. R. 69. 8 3 Barb. S. C. 125, 7 Cow. 450. ' Mann. v. Morewood, 5 Sandf. 557. * 5 Paige's Ch. 187. » 5 How. Pr. 439. [See ante, marg. ■> Code, § 143, sub. 3. p. 199.] SEG. 11.] THE COMPLAINT. 267 first, were ordered to be struck out as redundant and irrelevant. The ease of Sipperly et al. v. The Troy and Boston Railroad Co.^ furnishes another example of the same defective manner of state- ment. The plaintiffs, in two counts of their complaint, set forth facts constituting a cause of action under the general railroad act, for damages by reason of a failure of the defendants, in making their railroad, to restore certain highways to their former state, etc. ; and in two other counts, upon substantially the same facts, claimed treble damages of the defendants for the injuries to the highway, under the Revised Statutes. This was held " unnecessary repetition." The plaintiifs, it was said, upon their own showing, have but two causes of action, and yet these are put forward in the complaint, and the defendants are required to defend themselves, as though there were, in id.c\,,four distinct causes of action, upon which the plaintiffs expected to recover. This cannot be regarded as a statement of the facts constituting the plaintiffs' causes of action, '■'■without unnecessary repetition^ A similar decision was made in the case of Ghur chill v. Churchill,^ wherein a complaint setting forth the same cause of action, in a variety of different counts or statements, was [*353] considered a defective *pleading under the Code, and a motion to set aside the complaint granted for that cause. * It is well said by Justice Hand, in Boyce v. Brown* that "good pleading should be material, single, tnte, unamhiguous, consistent, and certain cm to a common intent as to time, place, person a/nd qucmtity, and not redundant or o^rgumentativeP These constituted some of the main rules under the old system, which tended to produce certainty in the pleading ; and the same general principles governed pleadings in equity. ° A defect in some of these particulars, however, was merely a matter of form to be reached by special demurrer. Thus, it was a general rule of pleading that the time and place of every material traversable fact must be stated." The time, however, and, in transitory actions, ' 9 How. Pr. 83, aff'd on appeal at and the superfluous counts were or- General Tenn, Dec. 1853. dered to be struck out. [9 Abb, 159, 2 9 How. Pr. 553. 11 How. 383.] ' See, also, to the same effect. Lackey * 7 Barb. S. C. 80. V. VanderbiU, 10 How. Pr. 155, in ' Story's Eq. PI. 3 n. which case the plaintitf was compelled ^ 4 Deiiio, 80. to elect which count he would retain. 268 STATEMENT OF FACTS. [CH. IV. the place, were, in general, considered as forming no material parts of the issue, so that one time or one place might be alleged and another proved. Both were required to be inserted, in order to give reasonable certainty and clearness to a general statement of facts, and an omission to insert them, being matters of form, must be reached by special demurrer, and the defect was cured after verdict or judgment. By the Code, however, matters of form are no longer objectionable, and an omission to state the time and place is no longer a ground of demurrer,' unless in state- [*354] ments of local description, * where it becomes necessary to prove the place, or in cases in which the time or place ' happens to form a material point in the merits of the case, and becomes part of the substance of the issue.' And where, from an omission to state the place or time, or to specify quality, quantity or value, the complaint fails to state the cause of action with reasonable clearness and certainty, the court, under section 160 of the Code, will order the pleading to be made definite and certain by amendment.* The Code specifies the cases in which this may be done, namely, " when the allegations of a pleading are so in- definite or uncertain that the precise nature of the chavge or defense is not copparentP This embraces all cases where the pleadings are ambiguous or doubtful in meaning, or where there is a repugnancy that is an inconsistency with other statements in the same pleading, or where they are unintelligible by reason of the omission of material words, in all which cases under the old system the pleading was bad in form and might be objected to by special demurrer. Now, however, the defect can be reached only by motion to the court," before demurring or answering, and within twenty days from the service of the defective pleading.' [If amended complaint is served, on leave given, the defendant may move within twenty days from its service.'] Or, perhaps, the court, on its own motion at the trial, may require the pleading to be made more definite and certain.' ' Finnerty v. Barher, 7 L. 0. 316. N. S. 439 ; Johnson v. Mallory, 2 Rob 2 See 6 Barb. S. C. 439. 681 ; Watt v. Watt, id. 685 ; Smitli v, = Steph. PI. 395. Tnifton. 3 id. 709 ; Quintard v. Newton, 7 L. 0. 316. 5 id. 73]. s fiw/ V. Bennett, 3 Sandl 703 ; Beek- « Rule 43, 4 How. Pr. 68, 3 Rob. 613. man v. Platner, 15 Barb. 350 [Olcott v. ' Walker v. Granite Bank, 1 Abb. Ga/rroU, 39 N. Y. 436 ; Kerr w IIai/,'«. N. S. 406. 35 id. 331 ; Arrietia v. Morriscij, 1 Abb. « 7 Barb. S. C. 90, 91. SEC. II. J THE COMPLAIl^T. 269 The statements of the cause of action should also [*355] *be direct and positive,'- and not hy way of argument or inference.'' In an action of trespass for taking and carrying away the plaintifi''s goods, the defendant pleaded that the plaintiff never had any goods, upon which the court remarked, " this is an infallible argument that the defendant is not guilty, and yet it is no plea.'" Facts, and not mere conclusions of law, must be alleged, and this principle has been repeatedly and uni- formly held applicable to the theory of pleadings adopted by the Code. The general rule on this subject to be drawn from all the cases* is well stated by the court, in Mann v. Moorewood, wherein it is said, that "a complaint must set forth all the material and issuable facts, which are relied on as establishing the plaintiff's right of action, and not the inferences from those facts, which, under the advice of his counsel, he may deem to be the conclusions of law. To draw the proper conclusions from the facts which are relied on as constituting a cause of action, or a valid defense, is the exclusive province and duty of the court, and to enable the court to discharge that duty, the facts themselves — not the conclusions that are supposed to flow from them — must be stated in the pleading, without prolixity, but with reasonable full- ness and certainty." In that case it was held that an averment in a complaint of overpayment, must be construed to [*356] mean an overpayment m money, and *could be sustained only by proof of that fact. The plaintiff could not sup- port such an averment by proof of an overpayment of stock at an agreed value, even though it were true, as he insisted, that this was equivalent in, laiv to a delivery in money, corresponding in amount with the agreed value of the stock." [Nor is it necessary to allege facts which will be implied from those alleged. °] It was held in Russell v. Glapp,'' that an allegation in a plead- ing that a party to an action is not the real party in interest was bad on demurrer. The pleadings must state such facts as, when established by proof, will enable the court to say that the party is ' It may be on " information or * See on this subject, ante, marg belief." See post, marg. p. 357. pp. 244, 245, and cases t]iere_ cited. '' Stepli. PI. 384, 7 Barb. S. C. 85, and <■ See on tliis subject, ante, marg. cases there cited, 9 Barb. S. C. 297. pp. 249-353, 254-265. 3 Stepli. PI. 384. « GaM v. Carroll, 35 N. Y. 385. ' 7 Barb. S. C. 482. 270 STATEMENT OF FACTS. [CH. IT, not the real party in interest. The same thing was subsequently decided in Bently v. Jones,^ and the principle held applicable to an allegation in the plaintiff's reply. So, too, in MoMurray v. Thomas," a general allegation of fraud, without setting out the facts showing the existence of the fraud, was held bad, as merely alleging a conclusion of law without naming the existence of facts by which it is supported, and as presenting no fact upon which an issue can be taken.' And in Bridge v. Payson* it is said, that, where a fact is stated in a pleading, which, of itself, constitutes a cause of action, or defense, the intent to rely upon it is a necessary inference, and no allegation to that effect is requisite. [*357] *When it is said that the allegations must be direct and positive, it is not meant that every allegation in the com- plaint must be set forth absolutely inform as upon the personal knowledge of the plaintiff. This was, indeed, customary in com- mon-law pleading, and it has also been very strictly applied in one case under the Code,' in which it was held that allegations should, in all cases, be set forth positively in form, and not on information omd ielief. In that case the words " on information and belief" were struck out as redundant wherever they occurred in the complaint, not upon the ground that the facts were pre- sumptively within the knowledge of the party, and, therefore, should be positively stated ; but, upon the general principle that allegations are, in all cases, to he positively made, as in common- law pleadings, and not upon information and belief. The form of verification prescribed by the Code was thought to present no obstacle, inasmuch as the effect am,d true construction of the oath was, that, though the matters are all in form positively alleged, yet the party swears that such as are within his O'n'n knowledge only are true, and, as to the residue, he is informed, or believes them to be true. I am not aware that the decision has been fol- lowed ; on the contrary, it is believed, that the uniform practice is the other way, and that allegations set forth on information and belief are not only sufficient, but proper, in all cases where 1 4 How. Pr. 202. ■* 5 Sandf. 216. « 5 How. Pr. 14. [Barber v. Morgan. ' Prescott v. Dole, 7 How. Pr. 281, 51 Barb. 116.] per Sill, J. 3 See, also, 1 Code, 91, 4 How. Pr. 98 ; and see post, ch. 5, t^ 3. SEC. II.] THE COMPLAINT. 271 the fact alleged is not within the knowledge ol the party. In- deed, it is held, that an allegation on belief alone is snffi [*358] cient ; the statement * that a party helieves a fact to be true, being equivalent to a statement " according to his knowledge, information and belief.'" The same thing was held in a later case in the New York superior court,'' and the reason given for it by Duee, J. (with whom Oaklet, J., concurred), is stated to be that " the object of the Code is, that every suit shall be prosecuted and defended in good faith, and this is secured if the material allegations in the pleading are believed by the party to be true. As the averment of his belief is not traversable, a statement of its grounds is immaterial." But if a fact pleaded is, presumptively, within the knowledge of the party, it should not be stated on his information or belief; and, in a case of gross abuse, doubtless, the court would correct it, as was done in Rich- ardson V. Wilton^ where a defendant denied knowledge or irifor- mation sufficient to form a belief whether he had committed the assault charged by the plaintiff', and the answer was stricken out as sham and frivolous.* It was, also, and still is, a rule that pleadings must not lie m the aitematifoe or hypothetical ; as where it was charged that the de- fendant wrote and published, or caused to be written and pub- lished, a certain libel, this was held bad for uncertainty." And, again, in an action against a jailer for an escape, the de- [*359] fendant cannot plead that, if the prisoner escaped, * he escaped without the knowledge, and against the will, of the defendant, and, if such escape was made, the prisoner volun- tarily returned. The defendant cannot thus plead hypothetically that, if there has been an escape, there has been also a return. He must either stand on an averment that there has been no escape, or that there has been one, after which the prisoner vol- untarily returned." This rule has been repeatedly applied to pleadings under the Code, but mainly to those on the part of the defendant, which will be hereafter noticed.' The great principle, ' Howell V. Frazer, 1 C. R. N. S. 271, ' 8 Mod. 130. 6 How. Pr. 331. « 1 Bos. & Pul. 413. ' Badway v. Mather, 5 Sandf. 654. ' See, among other cases, MoMurry 8 4 Sandf. 708. v. Thomas, 5 How. 14 ; Saylts v. * See subject of denial to answer Wooden, 6 id. 85 ; Lewis v. Kendall, id. discussed, post, ch. 5, § 3. 59 ; Wies and wife v. Fanning, 9 id. 544. 272 DEMAND FOR RKLIEF. [CH. IV. however, that statements are not to be hypothetically made, or in the alternative, is equally applicable to the pleading on the part of the plaintiff'. A violation of the rule is a departure from that directness of statement which is an essential element of good pleading under every system, and it tends to produce confusion and uncertainty in the issue. In cases where a party is " ag- grieved," by any such misstatement, the court will doubtless cor- rect the abuse on motion. [*360] * SECTION III. THE DEMAND FOR RBLtBF. The third requisite, which, by the Code, the complaint is required to state, is : A demand of the relief to which the plaintiff supposes himself entitled. If the recovery of money be demanded, the amount there- fore shall be stated.' In an action at law for a money demand, the declaration, after stating the cause of action, and, when necessary, the special injury or damage resulting therefrom, usually concluded with what was called the ad darrmuTn clause, " to the damage of the said plaintiff' of ,", etc. The plaintiflF might recover any less sum than that laid in his declaration, but, in general, could not recover more. In an action to recover specific, real or personal property, the conclusion of the declaration was similar, and the plaintiff", instead of demanding the relief to which he supposed himself entitled, namely, the possession of the land or the restoration of the chat- tels, merely alleged that he was injured and damaged to a specified amount,'' leaving to the court to pronounce the proper judg- ment on the facts as they appeared at the trial. A defect [*361] in the ad * damnum clause was a matter of form merely, and the objection was taken by special demurrer. In equity, the bill of complaint usually contained a prayer for the particular relief to which the complainant thought himself ' Cocle,§ 143, 3d subdiviaion. tliougtt proper to state; 2 R. S. f!04> ' In ejectment any nominal sum he § 7, 3 Edm. Stat. 312. SEC. III.] THE COMPLAINT. 273 entitled. The usual practice was also to include a prayer for general relief, in the discretion of the court, so that, if the com- plainant should mistake the relief to which he was entitled in his special prayer, the court might afi'ord him the relief to which he had a right, imder the prayer for general relief, provided such relief was agreeable to the case made by the bill.' If there was no prayer for general relief, none other could be granted than that specially asked for.° A prayer for general relief, however, was usually sufficient without a prayer for particular relief, and the plaintiff, at the hearing, might ask the particular relief to which he thought himself entitled f but in such case the court would grant such relief only as the case stated would justify, and not ordinarily permit a bill, framed for one purpose, to answer another, especially if the defendant might be surprised or pre- judiced thereby." The theory of the Code seems to do away, in all cases, with the prayer for general relief, and to require the party specifically to demand the relief to which he supposes himself entitled. Thus, in an action to recover real property, the complaint, after stating the ease conformably to the principles already laid down, [*3(:)2] * should conclude with a demand that the defendant be adjudged to deliver the possession to the plaintiff, with damages for the withholding thereof, such sum as the plaintiff may claim. So, also, in an action to recover personal property. It is to be observed, however, that the Code relaxes the equity rule in one respect, namely, that where there is no prayer foi- general relief, though the plaintiff' may have mistaken the par- ticular relief to which he is entitled, yet the court, except in case there be no answer, may grant him any relief consistent with the case made by the complaint, and embraced within the issue." [Where there is an answer the court is to give such relief as the parties are entitled to, whether demanded in the complaint or not." The court should award the plaintiff' any judgment to which he is ' Story's Eq. PI., § 49. 337 ; but see this case qualified on tlie •' Id., I 40 ; Cooper's Eq. PI. 13, 14. merits, Burt v. Burt, 41 N. T. 46 ; s Id. " Bmeri/ v. Pease, 20 id. 63 ; 30 How. * Story's Eq. PI., §§ 41, 43 ; Cooper's 189 ; id., and see the cases fuUy stated Eq. PL 14. in Mr. Townseud's notes to section 375 ' Code, § 375. [Guff v. Borland, 55 of VoorMes' Code.] Barb. 483 ; Wood v. Brown, 84 N. T. » Jones v. Butler, 30 How. 189. 35 274 DEMAND FOR KELIEP. [OH. IT. entitled on the whole ease, whether at law or wi equity. '^ When the complaint unites legal and equitable causes of action, if the evidence sustain either, judgment should be rendered aceordinglyj whether the action be tried at circuit or special term." The plain- tiff may embrace, in his complaint, both legal and equitable causes of action, and the erroneous decision by the court, on motion of the plaintiff, that the defendant is not entitled to a jury because the complaint sets up only equitable causes of action, works no waiver by the plaintiff of any legal causes of action therein con- tained ; and, failing to establish any equitable cause, he may recover upon any legal cause of action which he may have established as contained in his complaint/ If the complaint contains more than one cause of action, the remedy is by motion to strike out the allegations not material to one of them. The court should not dismiss the complaint.*] If, however, there be no answer, the relief cannot exceed that which the plaintiff shall have demanded in his complaint ' [and a demurrer is not an answer/] It has been held that the case made by the defendant's answer may famish a ground of relief to the plaintiff, independent of the case made by him in his complaint.' The common-law rule, that the plaintiff cannot recover in damages a greater sum than he claims in his complaint, it seems, is not affected by these provisions of the Code. If the recovery ©f money be demanded, the plaintiff is required to state " the amount thereof" [and if a verdict be recovered for a greater sum than is demanded, the plaintiff cannot have judgment there- for, except upon granting a new trial and amending the com- plaint."] In an action which is brought for the recovery of a sum certain, as on a promissory note, or for a liqiddated demand, this may always be done with a reasonable degree of exactness. The plaintiff may claim such an amount, v?ith interest [*363] * thereon from such a date, and his costs. In cases of unliquidated damages, of course the amount should be ' Armitage v. Pulver, 37 N. T. 494. ' [Simonson v. Blake, 13 Abb. 331, « N. Y., etc., V. if. W., etc., 33 N. Y. 30 How. 484.] 357; McKeon v. Lee, 4 Rob. 465. « Kelly v. Downing, 43 N. T. 71. 3 Davis V. Morris, 36 N. Y. 569. ' Belknap v. Seeley, 3 Duer, 570 ; [11 '^ Bass V. Gomstoek, 38 N. Y. 31; N. Y. 337; Slid. 313; 17 How. 31 ; 10 Anderson v. HUl, 53 Barb. 388 ; Render- Paige, 388.] tm V. Jackson. 9 Abb. N. S. 393. » Code, § 143. ' Corning v. Coming, 6 N. Y. 97. SEC. III. J THE COMPLAINT. 275 laid high enough to cover all possible damages ; and the plaintiff may claim in his complaint, and may recover by the Code, if he show himself entitled thereto, any rate of damages which he might have heretofore recovered for the same canse of action.' It is no ground of demurrer to the complaint, that a plaintiff demands judgment for a greater sum than by his own showing he can be entitled to recover. This was so held in the New York superior court, in Beetle v. Hayes^ in which the demurrer to the complaint was, that the contract set forth by the plaintiff liquidates the damages, but the complaint, without any sufficient cause shown, claimed unliquidated damages for the alleged breach, in a much larger amount. Duer, J., in giving the opinion of the court, remarks : " I cannot say that the complaint does not ' state facts sufficient to constitute a cause of action.' The complaint sets forth a valid agreement, and assigns a positive breach, and these are all the facts that are necessary to be proved to entitle the plaintiff to recover. Whether he can be allowed to prove damages exceeding the sum stipulated in the agreement, it may be admitted is a question of law, but as it is a question which respects the event, and not the cause of the action, it can be raised only upon the trial." This rule is undoubtedly correct in principle, and con- sistent with the theory of the Code, although perhaps in some respects a departure from the equity practice. In chan- [*364:] eery a demurrer was sometimes allowed *to a bill where the complainant made a specific claim to particular relief, which he could not under any circumstances be entitled to at the hearing ; as where his prayer for relief was inconsistent with the case made by his bill.' But the demurrers in these cases were not of frequent occurrence. " If such a demurrer," says the chan- cellor in one case,* " be allowed at all, it is not to be encouraged, as the defendant may avail himself of the objection at the hearing, with every possible advantage which he could obtain by a demur- rer." The same reason would apply to a pleading under the Code. The court may permit the complaint to be amended in the amount of damages claimed ; and that, too, after issue joined in ' Code, 376. * Western Ins. Go. v. Eagle Mre Ins. 2 5 Sand. 640. Oo., 1 Paige, 384. ' Cotton V. Ross, 2 Paige, 396 ; Mc- Coaker v. Brady, 1 Barb. Ch. 339. 376 DEMAND FOR KELIEF. [CH. IV. an action on contract, and after a reply verified, reiterating the amount claimed in the original complaint.' We have already seen that under the Code the proper relief, whether legal or equitable, will be administered in the same form of action. Thus, in See v. Parirridge^ the complaint demanded relief in damages for various money demands arising on contract, and also to set aside, as fraudulent, an award made by arbitrators in relation to certain disputes growing out of the same contract ; and this was held an action, not for the. recovery of money only, but which was properly triable without a jury at special [*365] term. In Linden v. Hepburn' it was said that " *in some cases alternative relief may be prayed, and relief be granted, in one or the other form, in which cases an action at law was necessary to attain the one form, and a bill in equity to reach the other." But in that case it was very properly held that incon- sistent relief could not be demanded in the same complaint, as that the plaintiff, a vendor, could not demand payment of an installment of purchase-money in arrear, and also a forfeiture of the contract of sale; and restoration of possession ; or as in the case at bar, that the plaintiff, a lessee, could not demand in the same complaint, a forfeiture of the lessee's term, and an injunc- tion against him on the breach of the covenants in his lease. In Getty V. Hudson Hiver Railroad Co. ,* a complaint claiming, by way of relief, a remedy in the nature of an injunction, with damages for the injuries already sustained, was decided to be good. The court in that case very properly remarks : "In trying such a cause at the circuit, I should most certainly allow whatever amend- ment in the pleadings was necessary to give the party redress. If the plaintiif had asked for equitable relief, and it had turned out that he was entitled to legal relief only, I should permit him to take it in that form. And if he had asked for relief only, when he was entitled to both legal and equitable relief, I should allow the proper amendment to administer complete justice in the case." In Qodding v. McAllister ° a complaint was adjudged to be good which, upon proper allegations for that purpose, [*366J demanded, as the relief sought, that a *written contract • Merchant v. N. T. Life Ins. Oo.,2 ^S Sandf. 671. Sandf. 669. IVost.marg. p. 806.J "eHow. Pr. 369. « 2 Duer, 463. ' 9 How. Pr. 133. SEC. III. J THE COMPLAINT. 277 be reformed, on the ground that a material part of it had been by mistake omitted, and when so reformed, and made to express the true intent of the parties, tliat it be enforced against the defendant, and he be adjudged to pay the damages due from a breach thereof. Such a complaint was thought to contain but one cause of action, and the relief demanded therein to be purely of an equitable nature. And in Jeroliman v. Oohen^ in the New York superior court it was determined iipon similar grounds, that a complaint might demand damages for breach of an agreement, and also, that the agreement, which the plaintiff was induced to sign by fraud, might be reformed, so as to correspond with the agreement set forth, of which the breach was alleged. But in the same court, in the later case of Lainoreaux v. The Atlantic Mutual Insurance Go.,^ it was held, on a motion to make such a complaint more definite and certain, that such prayer for relief was improper, unless the complaint contained the necessary alle- gations to entitle the plaintiff to have the instrument reformed, and to advise the defendant that such question will be litigated. But though the plaintiff may thus demand in his complaint alternative relief, yet it should be only such as is " consistent with the case made hy the complaint a/nd embraced within the issue."^ In other words, he should not ask, either directly or in the alternative, such relief as would be inconsistent with [*367] the *case made by his complaint. Subject to this quali- fication, as is well said by Justice Paekee, in MarquatN. Marquat^ " in all actions, which are defended, it is of no conse- quence what is the demand for relief in the complaint, or whether there is any demand for specific relief. Whether the plaintiff has mistaken the kind of relief to which he is entitled is entirely immaterial," etc., etc. The rule that the relief demanded should not be inconsistent with the case made by the complaint, is, as has just been observed, precisely what the old equity rule was, a violation of which was in some cases reached by demurrer.' There does not, however, seem to be any way under the Code in which a defendant can reach such a defect, except on motion to correct the pleading as was done in Lamoreaux v. The Atlantic ' 1 Duer, 629. s Code, 375. ' Reported N. Y. Times, Sept. 32d. * 7 How. Pr. 423. 1864, and see ante, p. 187, et seq. ' Ante, p. 364. 278 DEMAND FOK RELIEF. [CH. IV. Mutual Ins^iranae Co.;'' and it was expressly held in the case of JBeale v. Uayes, noticed on a former page/ that a demurrer will not lie because the relief claimed is not consistent with the facts stated in the complaint. It is true it was held at special term in Maxwell v. Farnum^ that a complaint was bad on demurrer which claimed not only damages for the conversion of personal property, but also a re-delivering of the property to the plain- tiff; but in that case the demurrer was to the complaint- itself, as joining two distinct causes of action which might be referred to the third and sixth classes of actions as defined by the two hundred and sixty-seventh section of the Code, and [*368] was not a demurrer *simply to the relief sought. It could not certainly have been intended to decide that a plaintiff might not claim in the alteniative a judgment for the recovery of the possession of the property, or for the value of such property in case a delivery could not be had, with damages for the detention thereof. Such a judgment is expressly allowed hj the Code,* and a prayer for such alter- native relief seems proper and consistent, and has been more than once adopted in practice ; as where, for example, the action is brought against a defendant then in possession, and the plaintiff does not seek the immediate re-delivery at the time of bringing his suit, but chooses to await the ultimate restitution of the property, which it is held he may do.^ Where the actual conversion or loss of the property is alleged in the complaint, so that it appears that defendant is not in possession at the time of commencing the action, it would be manifestly inconsistent to demand, as part of the relief, a judgment to recover possession.' Such a defect, however, I think, should be corrected on motion, and is not properly a ground of demurrer. And, so, also, if the complaint omit entirely to demand any relief, it would seem to be an irregularity merely, and by the analogy of the practice in cases where a defective title of the cause is set forth,' such a defect is to be reached, not by demurrer, but by motion to set aside the complaint for the irregularity.' ' Ante, p. 187, note. * The action will not lie at all, if tlie ^ Ante, p. 363. defendant is not in possession. See on 3 7 How. Pr. 336. this point ante, 175, 176 marg. p. * Sec. 377 ; see, also, § 561. '3 How. Pr. 407, 1 C. R. N. S. 30, 31. 6 1 Abbott's Pr. 170. ^ See, ante, marg. p. 304. SEC. IV.] THE COMPLAINT. 279 [*369] * The prayer for relief does not constitute any portion of the " statement of facts ;" it does not require a reply ; no issue can be taken on any portion of it ; it is addressed to the court, and will not be granted unless upon the hearing of the facts and the law of the case, the party is entitled to the relief prayed for, and consequently, although defective, it will not be struck out on motion.' The Code makes provision whereby a party may protect himself against an improper judgment, without incurring unnecessary, litigation. By section 385 of the Code, the defendant may, at any time before the trial and verdict, offer in writing to allow judgment to be taken against him for the sum or property or to the effect therein specified, with costs. If the plaintiff refuse to accept, and fail to obtain a more favorable judg- ment, he cannot recover costs, but must pay the defendant's costs from the time of the offer.'' Wherever, therefore, the plaintiff demands other or different relief from that which the facts of his case, if proved, would warrant, the proper course will be for the defendant, unless he moves to correct the pleading, to follow the practice marked out in this .section of the Code, and offer in writ- ing to let the plaintiff take such judgment as he may be entitled to. If he refuse to do so, a defense may then properly be made to the action. [*370] * SECTION IV. THE VBKIFICATION OF THE COMPLAINT.' It was the object of the commissioners of the Code in requiring all pleadings, except the demurrer, to be verified, to narrow down the issue as much as possible to the real matter in controversy between the parties, by getting an admission from either side of those facts in the case about which there was no real difference, and thus avoid the trouble and expense of calling witnesses to establish/ such facts on the trial." Accordingly the original Code provided that every pleading, except the demurrer, must be verified by the party, or attorney, to the effect that he believed it ' Per Oadt, J., AverUl v. Taylor, 5 ' See post, 525, 584, ma/rg. p. How. Pr. 478. ■> See Kep. Com. 153. = Am. Code, § 385. 280 VEIIIFICATION OF THE COMPLAHSTT. [CH. IV. to be true,' except when the party wouM be privileged from testi- fying as' a witness to the same matter, in which case the verifica- tion might be omitted.'' The section was amended in 1849, so as to leave it optional with the party to verify the pleading or not, prescribing, sub- stantially, the old chancery form of verification, and was again amended in 1851. As the two sections now stand, they read as follows : § 156. Every pleading in a court of record must be subscribed by the party or his attorney, and when any pleading is [*371] * verified, every subsequent pleading, except a demurrer, must be verified also. § 157. The verification must be to the eflFect that the same is true to the knowledge of the person making it, except as to those matters stated on information and belief; and as to those matters he be- lieves it to be true, and must be by the affidavit of the party; or, if there be several parties united in interest, and pleading together, by one at least of such parties acquainted with the facts, if such party be within the county where the attorney resides, and capable of making the affidavit. The affidavit may also be made by an agent or attorney, if the action or defense be founded upon a writ- ten instrument for the payment of money only, and such instru- ment be in possession of the agent or attorney. When the pleading is verified by any other person than the party, he shall set forth in the affidavit his knowledge, or the grounds of his belief, on the sub- ject, and the reasons why it is not made by the party. When a corporation is a party, the verification may be made by any officer thereof; and when the State, or any officer thereof in its behalf, is a party, the verification may be made by any person acquainted with the facts. The verification may be omitted, when an admission of the truth of the allegations might subject the party to prosecu- tion for felony. And no pleading can be used in a criminal prose- cution, against the party, as proof of a fact admitted or alleged in such pleading. By a subsequent act,' the verification of a pleading may be omitted in all eases where the party called upon to verify would be privileged from testifying as a witness to the truth of any matter denied by such pleading.' [The defendant is not required to show, by his answer, that he is excused from verifying it under this act; but when a motion is made for judgment, as if no answer had been served, he may then establish the facts by afii- ' It was held tliat if not so verified, ' Laws of 1854, p. 153, 4 Edm. Stat, the pleading might be treated as a nul- 541. lity ; 3 How. Pr. 380, 1 Code B. 36. * See verification of answer, post, ch. ■' Orig. Code, § 183. 5, § 5. SEC. IV.j THE COMPLAINT. 281 davit ;' although, if the fact do not appear upon the face of the pleadings, it is advisable to serve, with his answer, an affidavit stating the facts which excuse verification.'] The form and manner of the verification is thus particularly pointed out by the Code. It must be made by the party, except in certain cases, when it may be made by the attorney or [*372] agent; and, when made by *the attorney, the reasons must be stated in the affidavit.' The party must regularly subscribe his name to the pleading or the affidavit.* But, it seems, the signature of the defendant to the veriiication is a sufficient " subscription " to the complaint within the meaning of the Code.' The Code requires the verification to be to the effect, that the same is " true to the knowledge of the person making it." It is sufficient, however, to swear that " the complaint is true," which is, in law, a swearing that it is true to the Tcnowledge, etc., of the person making it.° But it is not sufficient to swear that it is sub- stantially true ; the statute must be strictly followed, and parties will not be permitted to evade it by qualifications or reservation of any kind.' The verification must be that the same is true, " except as to those matters stated on information and belief, and, as to those matters, he believes it to be true." By the amend- ment of 1849, the phraseology was " on information or belief" Under this section a verification that a complaint was true, " ac- cording to the best of his knowledge and belief, ^^ was held insuffi- cient." And in another case it was said that a verification was defective, which used the words "information and belief"" [*373] *If the affidavit is made by one of several parties plead- ing together, it must be by one of such parties acquainted with the facts ; if he be within the county where the attorney reside, and capable of making the affidavit. [If the action be prosecuted for the immediate benefit of one not a party on the record, he may verify it.'°] ' Moloney v. Bows, 3 Hilt. 347, 357 ; ' Southworth y. Curtis, 6 How. Pr. see cases cited by Mr. Townsend in 371, per Hubbabd, J. ; Kinoaid and note to Voorhies' Code, § 157, and by wife v. Kipp and Brown, 1 Duer, 693. Mr. Wait, to same section, bis Code. ' Waggoner v. Brown, 8 How. 313. 2 3 Tillinghast & Sherman's Pr. 34. ' Van Home v. WUlis et al., 5 How. 3 Van Eorne v. Willis et al., 5 How. Pr. 238, per Gridlby, J. Pr. 338. ' Dams v. Potter, 3 C. R. 99, 4 How. ■» Laimbeer v. Allen, 3 Sandf. 648. Pr. 156. 5 SubieU V. Livingston, 1 C. R. 58, 'j adding or striking out the name of a party, or correcting a mistake, or inserting other allegations material to the case; or, when the amendment does not change, substantially, the claim or defense, by conforming the pleading or proceeding to the facts proved. Parties might be brought in by amendment [*380] * at any time prior to a decree under the chancery prac- tice." Matters arising previous to the commencement of ' Code, § 177. * Beck v. Stephani, 9 How. Pr. 193. ' Hornfager v. Hornfager, 1 C. R. N. ^ Oreen v. Bates, 7 How. Pr. 296 S. 180. [Ante, marg p. 148]. 3 Story's Eq. PI., § 363, and cases « 2 Atk. 370. above cited. 286 SUPPLEMENTAL COMPLAINT. [CH. IV, the action, and of which the party was ignorant, might be intro- duced into the complaint, by amendment, before issue and the examination of witnesses ; but, it seems, after that time should be brought before the court by supplemental complaint." A sup- plemental complaint might also bring before the court a party who was out of the jurisdiction of the court when the original bill was filed, and who had since returned, in cases where it could not be done by amendment." !N"ow, by the Code, the pleadings may be amended, even after judgment, by " inserting other allega^ tions material to the case," as well as by " adding or striking out the name of a party." Whether or not, in analogy to the chancery practice, a supplemental complaint will be allowed, under the Code, after judgment, for the purpose of enabling the court to give directions not prayed in the original complaint, but which the result of the proceedings under the judgment has rendered proper, or whether a supplemental complaint may be allowed in case of a judgment of the court, quere ? The Code provides : In case of death, marriage or other disability of a party, the court, on motion, at any time within one year thereafter, or after- ward on a supplemental complaint, may allow the action to be con- tinued by, or against, his representative or successor in interest. In case of any other transfer of interest, the action shall be continued in the name of the original party ; or the court may allow the person to whom the transfer is made to be substituted in the ac- tion." [*381] *This substitution is made on motion. Under the equity practice, if the interest of the defendant became vested in another, the defect was remedied by a supplemental bill as in the case of alienation by deed or otherwise, or by bankruptcy or insolvency, the defect in the suit might be supplied by supple- mental bill, whether the suit had become defective merely, or abated as well as become defective.* So also in case of other sub- stitution or change of interest, as if a new trustee be appointed in place of a trustee made a party defendant to a suit, such new trustee must be brought before the court by supplemental bill.* ' 2 Barb. Ch. Pr. 60. tlie entire section has been lieretofore * Id., 3 Denio, ins. given. Ante, mari?. p. 148.] » Code, § 121. [It is unnecessary to « Story's Bq. PI., § 343. insert the remainder of the section, as ■■ King v. Donnelly, 5 Paige, 46. SEC. v.] THE COMPLAINT. 287 The same principle has been applied since the Code, as where one copartner, with the consent of the other, made an assignment of a portion of the partnership property for the payment of partner- ship debts, and an original bill was filed for a partnership account, but before the appearance of the assignee as one of the defendants, he died, and a trustee was appointed by the court in his place, it was held that such trustee was a necessary party, and that the proper way to make him such was by sv/pplemental iill.^ [*382] *The continuance of the action and the substitution of parties referred to in case of any transfer of interest after action commenced, if applied for within the year, may be obtained on motion. A supplemental complaint is only necessary if the application be made [more than one year after the cause therefor arose.] A. supplemental complaint should state the original complaint and the proceedings thereon f but it is not necessary to set out at length the allegations contained in the original bill, though it does not follow, that for that reason the bill is demurrable." If it be occasioned by an event subsequent to the original complaint, it should state that event and the consequent alteration with respect to the parties, and should demand relief against all the parties. The facts stated should be material to the matters in controversy ; if they are not, a demurrer will lie to the supple- mental complaint.* If the original complaint is wholly defective, and there is no ground for proceeding upon it, it cannot be sus- tained by filing a supplemental complaint founded upon matters which have subsequently occurred.' Yet, if the original com- plaint was sufficient for one kind of relief, and facts after- [*383] ward *occur which entitle the plaintiff to other and more extensive relief, he may obtain it by setting out the new matter in a supplemental complaint." A supplemental complaint should make all the original defendants parties.' > Johnson v. Snyder, 7 How. Pr. 395. ^ Story'a Bq. PI., § 43. It does not appear from the report in * Waitson v. Thibau, 17 Abb. 184 ■ this case whether the original plead- Rdbbins v. Wells, 36 How. 15, 18 Abb. ings were under the Code, or under 191. the former equity system. The ques- * 1 Paige, 168, 3 Barb. Ch. Pr. 67. tion is stated to have arisen on " de- [BohMns v. Wells, 36 How. 15, 18 Abb murrer to supplemental hill." 191 .] 2 Story's Bq. PI. 343. ' 9 Paige, 538. 8 Johnson v. Snyder, 7 How. Pr. 395. 288 SUPPLEMENTAL COMPLAINT. [CH. IV. A supplemental bill could not, under the old practice, be filed without a previous order of the court giving permission.' [A suppleiAental complaint to revive an action is a matter of right, but cannot be lileil without leave of the court.* In other cases it can only be interposed by leave of the court,' which may be refused when the party has been guilty of laches ; * if it be untrue in fact," or do not contain a good defense or cause of action.' Nor will it be allowed, in genei'al, to set up a technical defense.' But, if true, and a valid defense, it will usually be allowed,' and, if promptly offered after the facts calling for it, its denial wiU be error." If the service of the amended pleading would be in fur- therance of justice, it will be allowed, although the motion might have been made earlier.'" Such a pleading will be allowed almost as a matter of course, without costs, if promptly made." A supplemental pleading is not a substitute for, or waiver of, the original, but an addition to it,''' and leave to serve it decides nothing as to the parties' rights." It must be consistent with the original,'* and must be of circumstances happening after the com- mencement of the action or after the original pleading was put in.'" If happening before suit brought, the remedy should ordi- narily be allowed by amendment, so that the opposite party can, if he desire so to do, plead anew instead of merely to the supple- mental matter.'" If the opposite party do not desire to plead anew, it would undoubtedly be within the power of the court to allow a supplemental pleading as to matter occurring before suit, ' 2 Paige, 333. '" Drought v. Ciiiiiss, S How, oB. ' Beaeh v. RegnokU, 64 Barb, 506; " Sage v. Mosher, IT IIow. 367. overruling Roach v. Lafurge, 43 Barb. " Dann v. Baker, 13 How. 531 ; 616 ; 19 Abb. 167, Forhes v. Waller, 55 N. T. 435 ; Slau- ' Diinlap's note to Partridge v. Us- son v. EnglcJutrt, 34 Barb. 198; Broini borne, 5 Russ. 253 ; 5 Eng, Ch, Rep. v. Bir/iardsoii, 4 Rob, 607. (Banks' ed,) " Eohhins v. Wells, 18 Abb. 191 ; 36 ■" Morrel v. Oarrelly, 16 Abb, 269 ; How. 15 ; 1 Rob. 666, Chcesnmn v. Sturges, 19 id. 393 ; Sage " ,%ins,>ii v. Englehart, 34 Barb. 198 ; V. Mosher, 17 How. 367; EougUon v, Wattson v. Thilvni, 17 Abb, 184; Cor bl-inner, 5 id, 420, dier v. Cordier, 26 How, 187. ' Morrel v. GarreUy, 16 Abb, 269. "• floriifager v. Hornfager, 1 C. R. 'Morrel v. GarreUy, 16 Abb, 369; N", S, 180; Hendricks v. Decker, 8? Bclz V. Betz, 19 id, 90. Barb, 303, 303 ; Williams v, Hernon, 16 ' Hoyt V, Shelon, 4 Abb, 69 ; 6 Duer, Abb, 173 ; Motth-ws v. GMcopee Maiif. 661 ; Sanford v. Sinclair, 3 Drnio, 3(i9, Co., 3 Rob, 71 3 ; R(tdley v. IToiiqlitaUng, 8 Morrel v. Garrdhj, 16 Abb, 369 ; 4 IIow. 351 ; 1 Woolw, C, C, R. 383, Bates V, Fellows, 4 Bo,sw, 639, '« Dann v. Baker, 13 How, 531 ; '' Broome y.Beardsley,'iCa.m(iS,lTl\ Forbes \. Waller, 35 N, Y. 430, 435; West V. Stanley, 1 Hill, 69 ; Stewart v. Swaizcl v. Arnold, 1 Woolw. C. G. R. 388. Mdor, 5 Abb. N. S. 68. SEC. v.] THE COMPLAINT. 289 but, even then, it would be more in analogy to the system of pleadings introduced by the Code to require the original pleading to be amended.' A copy of the proposed supplemental pleading should be served with the affidavits and notice of motion." A summons for relief must accompany the supplemental complaint and must be served upon the party sought to be bro^ight in and not the attorney of the former party. ^ The supplemental complaint should state the original action and the several proceedings therein. It should then show the abatement ; the plaintiff's right to revive the suit, and that the defendant is the proper person against whom the revivor should be had. Thus, when an executor applies to revive a suit, . he must show that he has taken probate of the will of the dece- dent, otherwise the complaint will be demurrable. It should charge that the case ought to be revived and to stand in the same condition, with respect to the parties in the supplemental com- plaint it was in with respect to the parties to the original action at the time the abatement happened. It should demand judg- ment that the action be revived accordingly, and that the defend- ant answer the said complaint and any other demand for judg- ment called for by the special circumstances of the case,' unless the complaint for revivor state so much of the original complaint as shows that the plaintiff is entitled to revive, it is demurrable.^ The party is entitled to the benefit of all proceedings had in the action and to revive it in the precise condition in which it was at the abatement." The defendant cannot, by his answer, resist the plaintiff's right to revive, by stating matter which existed at the time of the answer or decree.'] ' MaMahon v. Allen, 1 Hilt. 103, 3 Simons, 81, 6 Bng. Cli. Eep., Banks's Abb. 89, 13 How. 39. edition, and Bell v. Dunmore, 7 Beav. ■' 1 Barb.Ch. Pr. 371 ; Wells v. Gruffer, 387, Banks's edition. 5 Paige, 164 ; Goodhue v. Ohurchman, ^ 2 Barb. Ch. Pr. 48 ; Lawrence y. Bol- 1 Barb. Ch. 596 ; Marquisee v. Brigham, ton, 3 Paige, 394. 12 How. 399 ; Fulton v. Oilmore, 8 * 3 Barb. Ch. Pr. 46, 47 ; see ante, Beav. 154^8, 1 Phillips, 533. The reader marg. p. 148. should consult Townsend's notes to § ^ Phelps v. Bproule, 4 Simons, 318, 177 of Voorhies' Code, Wait's notes and note to Banks's edition, 6 Bng. Ch. to § 177 of the Code, Tillinghast and Rep. Shearman's Practice, Estee's Practice ' Moore v. Hamilton, 48 Barb. 180. and Pleadings, vol. 3, pp. 5, 357-364, ' Dunlap's note to TFaig'sifli^v. i?ryaft, and Barbour's and Daniell's Chancery 1 Euss. and Mylne, 30, 6 Eng. Ch. Eep. Practice, titles Supplemental Bills ; Banks's edition ; 25 N. Y. 430. also, note to Oolelough v. ISvans, 4 37 390 SUPPLEMENTAL COMPLAINT. [CH. IV. The Code is silent as to the practice to be pursued in case a suit has been suspended over a year after the death, etc., of a party, except that it must be continued on a supplemental complaint. In Greene v. Bates^ a case arising under the Code, it was said by Justice Mason, that the former practice in chancery furnished the mode of proceeding in such case. According to this practice, where a party plaintiff had died during the pendency of the suit, it was not the practice to revive the suit by making the adminis- trators parties plaintiffs on the defendant's motion. But the practice was, where the defendant moves to grant an order requiring the administrators to file a supplemental bill in a stated time, or that the bill be dismissed, ° and this practice was accord- inglj^ followed in the case referred to.° ' 7 How. Pr. 296. ^ See ante, marg. p. 148. ' Ibid., and see cases therein cited. CHAPTER IV. (A) OF THE COMPLAINT IN PARTICULAR CASES. [It would be manifestly impossible, within the limits assigned to the present work, to treat of the allegations proper or even necessary in the various actions at law and suits in equity. The present chapter can only include a selection of the recent cases, and of some of those out of the ordinary classes of actions. We proceed to them at once for more easy reference, as nearly as may be, in alphabetical order; premising that, although many of the cases do not arise upon questions as to the validity of a plead- ing, that it is necessary to know the rules of law which render a party liable in order to draw a good pleading upon the cause of action. Account. — Where complicated accounts are involved, a suit in the nature of a bill in equity to take and state them is proper, although an action at law would also lie ; ' otherwise, however, if the account is not long nor complicated,'' or if the gist of the action be for breach of contract, and the inquiry simply involve many items of damages.' The action of account at common law would only lie between two merchants. It was unavailable where the firm consisted of a larger number, and the Revised Statutes have not changed the rule.' One who seeks to open a settled stated account must, in his complaint, point out the specific errors of which he com- plains and furnish the data by which it may be corrected,' unless fraud be charged and established, when the whole account will be opened and examined." " Taff Vale, etc., v. Nixon, 1 House Abb. N. S. 366 ; see Hatch v. Wolf, 80 of Lords Cases, 110 ; 1 Story's Eq. Jur., How. 65 ; but see Birmingham v. ito^ S 441 et seq. cliff, L. R., 6 Excb. 224. ^ Foley V. Hill, 3 House of Lords * Appleby v. Brown, 34 N. T. 143, S. Cases, 28. C. 33 How. 307. 5 Ranger v. Great Western, etc., 5 ' Parkinson v. Haribury, L. R., 3 H. House of Lords Cases, 73 ; Dewey v. L. 1 ; Ohubbuck v. Vernam, 43 N. Y. Meld, 13 How. 487 ; Turner v. Taylor, 432. 2 Daly, 278 ; Freeman v. Atlantic, etc., * Bruen v. Hone, 2 Barb. 586 ; 1 13 Abb. 134 ; Ross v. The Mayor, 2 Story's Bq. Jur., § 533 et seq. 292 COMPLAINT IN PARTICULAR CASES. [CH. IT A. Agent.' — An action by a purchaser lies against an agent for fraud practiced by him on the sale of property, although the pur- chaser has sued the principal for a breach of warranty on the sale and been defeated ; ' and so against an agent who exceeded his authority in assuming to contract on behalf of a principal, the gist of the action being a warranty of his authority.* Otherwise, if the person contracting with an assumed agent know his powers,' and induce him to enter into the contract,' or where the power of the agent is given by statute.' Though the agency be disclosed, if the agent do not sign as such, or it do not appear by the instrument that he is an agent, he will be liable personally thereon.' He must so contract as to bind those he claims to represent, and merely describing himself in signing as agent will not relieve him from personal liability," although the corporate seal of his principal, a corporation, be affixed." Otherwise, if the agent promise to pay " as agent," and add to his signature " agent for A B ;"'° or the contract show he contracts as such," or where a note is payable to the principal, and the agent indorses it, adding "agent," to his signature. '° If the agent ' Upon tte sTibjeot generally see * Story on Agency, § 265; HaZl v. Paley on Agency, Story on Agency, Lauderdale, 46 N. T. 70. Addison on Contracts, Chitty on Con- ' Aspimoall v. Torrance, 1 Lans. 381, tracts, Parsons on Contracts, Black- 385. stone's Commentaries, Kent's Com- ' Hall v. Lauderdale, 46 N. T. 70. mentaries, Broom's Commentaries, ' Snelling v. Soward, 7 Rob. 400 ; Broom's Commentaries on Common Townsend v. Hubbard, 4 Hill, 351 ; Law, Bouv. Inst., Redfield on Bail- Squire v. Jforris, 1 Lans. 282. ways, Shearman and Redfield on Neg- * Pumpelly v. Phelps, 40 N. T. 60, ligence, Selwyn's N. P. Smith on Con- 43 Barb. 469; DeWitt t. Walton, 9 tracts, Smith's Man. Com. L., Steph- N. T. 571 ; Beznor t. Webb, 86 How. en's Commentaries, Benjamin on Sales, 853 ; Paice v. Walker, Law Rep., 5 Story on Sales, Goweu's Tr., Kingsley's Exch. 173 ; but see Hicks v. Hinde, 9 ed.. Wait's Law and Practice, Williams Barb. 538; Auhurn, etc., v. Leonard, on Personal Property, 368, marg. p. 40 Barb. 119, 4 Alb. Law Jour. 71. and note ; Angell and Ames on Corpo- ' Button V. Marsh, L. R., 6 Queen's rations, Adams's Equity ,Danieirs Chan Bench, 861. eery Practii-e, Story's Equity Juris- '" Randall v. Snyder, 1 Lans. 163 ; prudence, Story's Equity Pleadings, Becker v. Lament, 13 How. 23 ; Haight Kerr on Injunctions, Kerr on Frauds v. Solder, 30 Barb. 218 ; Olootty. Tioga, and Mistakes, Smith's Manual of etc., 40 id. 179 ; 27 N. T. 546, 4 Alb. Equity, Willard's Equity Jurispru- Law Jour. 71. dence, Moak's Notes to Clarke's Chan- " Lee v. Methodist, etc., 52 Barb. eery, 89, marg p. ; Jistco's Pleadings 116 ; Episcopal, etc., v. Varian, 28 and Practice, 1 Conw. Rob. Prac, 3 id. id. 044 ; Horton v. Garrison, 33 id. 3 id., 5 id. , 6 id., Chitty's Pleadings, 176. « Q-utchess V. Whiting, 46 Barb. 189. '^ Babcock v. Beman, 11 N. T. 200,1 ' W7dte V. Madi.vm, 36 N. Y. 117; E. D. Smith, 593 ; Thompson y. Tioga Cherry v. McDougal, L. R., 3 Priv. C. etc., 36 Barb. 79. C. 34. CH. IV A.] COMPLAUSTT IN PAETICULAE OASES. 293 aver by answer tliat he contracted for his principal, intended to bind him only, and the contract was so understood by all parties, and was agreed to be so executed, but by mistake was not executed so as to bind his principal, the answer would show an equitable defense.' An agent may maiatain an action against his principal for indemnity upon an implied promise to indem- nify him against loss for executing his orders," provided the agent believe the directions to be rightful." Otherwise if the agent know the act to be a willful wrong,' or the agent do an act not within the directions.' If the agent seek to recover costs incurred or damages paid, which were recovered of a sub-agent, he must aver them specially." An agent, as a deputy sheriff, cannot maintain an action in his own iiame.' A known agent, who makes a contract as such, is not liable personally unless he contract to become so liable, or exceed his powers.' Agreements^ special. — Assignment of a patent right, the as- signor to work it, and, if not done, to forfeit what he has paid and the assignment to be void, does not bind the assignee absolutely to work it.' Alimony.'" — A suit for alimony will lie, although the plaintitf be living in the same house with the husband and is not entitled to a divorce, if it be averred and shown that the husband is very penurious and refuse to comfortably provide for the wife, and that he has beep guilty of cruel and inhuman treatment, which has been condoned, for refusing to properly provide for the wife, is, in one sense, a revival of former cruelty, if, for any reason, the wife cannot safely cohabit with the husband." Otherwise if there ' Wake V. Harrop, 1 Hurl, and Colt, « Buck v. Amidon, 41 How. 370. 203, 6 Hurl, and Norm. 768. « Newell v. Wheeler. 4 Rob. 347. * Turner v. Jones, 1 Lans. 147 ; '" Upon the subject generally, see Gastle V. Noyes, 14 N. Y. 332 ; Betts v. Moak's note to Clarke's Ch., rnarg. p. Gibbons. 2 Ad. and BU. (39 Eng. C. L. 154, 2 Barb. Ch. Pr., Daniell's Ch. Rep.) 57 ; Toplia v. Qrane, 5 Bing. N, Pr., title Married Women ; Estee's PI. C. (35 Eng. C. L. R.) 636 ; Allaire v. and Pr., Voorhies' Code, Wait's Code, Ouland, 2 Johns. Cas. 53. Van Santvoord's Eq. Pr., Adams's Eq., ^Turner v. Jones, 1 Lans. 147; Story'sEq.Jur., Willard's Eq., Smith's Cfutle V. Noyes, 14 N. Y. 332 ; Howe v. Man of Eq., Kerr on luj., Bishop's Mar Buffalo, etc., 38 Barb. 134, 37 N. Y. & Div., Bishop on Married Women, Bl. 397. Com. Bouv. Inst., Broom's Com., Sel- * Oastle V. Noyes, 14 N. Y. 333 ; Stom wyn's N. P., Stephen's Com. V. Booker, 9 Cow. 154. "P v. P , 24 How. 197; ' Harmy v. Bochester, 35 Barb. 177. Mnnby v. Scott, 0. Brido-. 2:;fl ; i_4iill(md « StoncY. Booker, 9 Cow. 154. v. Oallrmd, 9 Am. Law Reg. N. S. 463, ■" Terwilliger v. Wheeler, 35 Barb. Sup, Ct. Cal. ; 3 Am. Law Times, State 633. a. Rep. 354. 294 COMPLAINT IJSr PARTICULAR CASES. [CH. IV A. have been no improper treatment, or attempt at any,' or if the wife be guilty of recrimination to such an extent as to justify the defendant, and make out a defense to the action under the statute." Auimals, owners of.' — -The owner of a horse accustomed to bite, to his knowledge, is liable, if, while unmuzzled, he bite a passer by,* and the complaint in such case need not aver that the injury complained of was received through the defendant's negli- gence in keeping the horse. ° The complaint, in an action for an injury by a domestic animal, should, however, allege that the owner knew it was vicious," unless it was trespassing upon the plain tif}''s premises when the injury was committed, when, if the complaint allege a breaking an entry of plaintiff's close, the trespass is the gist of the action, and the injury merely an aggravation of damages ;' or for sheep Jdlled or wounded by a dog, where the owner is made liable by statute without knowledge of the vicious propensity of the dog, and although it be not shown he ever before killed or wounded sheep ;' but the statute does not cover damages from a dog merely chasing sheep, and in order to recover such damages, the complaint must allege and prove scienter." But even where the owner of an animal, without scienter, is liable by statute, for injuries committed by it, proof of scienter is admissible to increase the damages.'" One who willfully sets a dog upon other animals is liable for any injury he may inflict," although the father of a minor or master of a servant who ' Atwater v. Atwafer, 53 Barb. 631, Wheeler v. Brant, 33 Barb. 334 ; Fair- 36 How. 431, 441. child v. Bentley, 30 Barb. 147 ; Reed v. 2 Palmer v. Palmer, 29 How. 390, Edwards, 17 C. B. N. S. (113 Eug. C. L. 393, 894. Rep.) 260 ; Kelley v. Wade, 13 Irish Law ^ Upon the subject, generally, see Rep. 484 and cases cited ; Nayler v. Shear, and Redf. on Neg., Addison on Mortimore, 17 C. B. N. S. 345, 112 Torts, Hilliard on Torts, Bl. Com,, Bng. C. L. Rep. Bouv. Inst., Broom's Com., Broom's ' Van Leii-Beii v. Lyke, 1 N. T. 515 ; Com. on Common Law, Kent's ('om.. Hall v. Hodskins, 30 How. 37 ; Dunekel Cowen's Tr. (Kingsley's ed.), Wait's v. Koeker. 11 Barb. 387 ; Reed v. .Si- Law and Pr., Hilliard's Rem. for Torts, toards, 17 C. B. N. S. (113 Eug. C. L. Smith's Man. Com. Law (1st Am, ed.). Rep.) 245. 10, 113, 117, Stephens' Com,, Ben- » Ostwri/^ v, ific/toZs, 49 Barb. 145. iamin on Sales, Story on Sales, Wil- ' O.iiacap v. yirholx. 49 Barb. 145 ; liams on Per. Prop. 19, marg. p., Chit- Auchmuti/ v. Ram, 1 Denio, 495. The ty'g PI. statute hereafter referred to, as to who * Koney v. Ward, 38 How. 255, 3 shall be deemed the owner of a dog, Daly, 39.5. does not affect the question as to whom ' PopplewellY. Pierce, 10 Cash, 509 ; he in Kelley v, Tilton, 3 Keves, 363. '» i^wift v. Applehone, 23 Mich, 352 « Van Lemen v. Lyke, 1 N. Y, 513 ; " Tift v. Tift, 4 Denio, 175. OH. IV A.J COMPLAIWT IST PAETICULAE CASES. 295 does so is not/ unless it be averred and proven that it was done by his command or direction." If two dogs fight, the rule of scienter does not apply, and the owner of the dog killed must show that the defendant's dog was the aggressor in that particular fight.' Offering to settle for damages done is, however, some evidence of scienter." The owner of wild beasts must restrain them at his peril,' although, prior to the act of 1862," he was not liable for damages caused by their mere appearance frightening a team, without it being averred and proved he knew or had notice that their appearance would produce such a result.' It is not necessary to show that the animal has actually bitten any one, if it be shown that it has, to the owner's knowledge, evinced a savage disposition by attempting to bite f but merely bounding upon and seizing people, so as not to hurt them, is not sufficient." It is sufficient if the dog was accustomed, from time to time, to bite people, under circumstances which would not pro- voke a dog of good temper." The owner of a vicious animal, of whose vicious propensity he has had notiqe or knowledge, is liable for an injury suffered from it by one upon his premises by his license ;" and so as to a tres- passer ;" otherwise if the dog were chained, so as to notify one approaching him that he was dangerous.'' A railway company is not liable for an injury inflicted by a stray dog at their station, although a few hours before he had there bitten another p^son, if he was then driven away ;" although, in New York, every person in possession of any dog, or who shall suffer any dog to remain about his premises for twenty days before the assessment of a tax, or previous to his injuring, chasmg or worryim^ sheep, or his attacking any person peaceably traveling on any highway, or any horse in a carriage, or upon ' Tift V. Tift, 4 Denio, 175 ; Steeled. « Worth v. Gilling, Law Rep. 2 C. P. 1. Smith, 3 E. D. Smith, 331. » Line v. Taylor, % Post. & Finl. 731. i V. Smith, 3 E. D. Smith, 331. " Oharlwood v. Ordg, 3 Carr. & Kirw. 2 Wiley V. Slater, 33 Barh. 506. See, 46. however, Wheeler v. Brant, 83 Barb. " Kelley v. Tilton, 3 Keyea, 363. 324. =2 Loomis v. Terry, 17 Wend. 496 ; Sayrea v. Walsh, 13 Irish L. R. 434 ; Kelley v. Tilton, 3 Keyes, 269, 270 ; Thomas v. Morgan, 3 Cromp. Mees. and Sawyer v. Jackson, 5 N. Y. Leg. Obs. Rose. 496, 5 Tyrwh. 1085. 380. * Soribner v. Kelley, 38 Barb. 14. '' Logue v. Lurke, 4 E. D. Smith, 63. « Laws 1863, 363, 3 Bdm. St. 545. '* Smith v. Great Eastern, etc., I-aw ' Soribner v. Kelley, 38 Barb. 14. Rep., 3 C. P. 4. 296 COMPLAIKT IN PAKTICULAE CASES. [CH. IV A. which any person shall be mounted, shall be deemed the owner of snch dog ;' but, in order to recover, the plaintiff must aver and prove that the defendant had the possession of the dog, or allowed him to remain about his house for twenty days previous to the injury." And it is not sufficient that he belonged to the defend- ant's hired man, who kept him at the defendant's house during the day, but took him home at night.° It is not necessary to allege knowledge of a vicious propensity of the animal, when the owner is at fault, as where he negligently turns a horse loose, or allows him to run loose in a populous street in a city, and he kick one therein. The negligence of the defendant in permitting the horse to be in a public street unattended, is sufficient to ren- der him liable for the injuries there inflicted by him,'' but merely proving the horse was in the street unattended, it seems, is m. proof of negligence on the part of the owner.' One who, by putting strong smelling meats into traps on his lands, and, by their instincts, tempts the plaintiff's dogs to the traps to their destruction, is liable, although the animals were trespassing at the time they came to grief.' Assault and battery.' — If the owner of land, overhung by the branches of a fruit tree growing upon the adjacent lot, attempts, by violence, to prevent the owner of the adjacent lot from pick- ing the fruit on the overhanging branches, he is a wrong-doer, and an action for assault and battery may be maintained against himf and, if the fruit or the tree fall, accidentally, upon the land of the adjoining owner, the owner of the tree may enter thereon to reclaim it.' If the tree stand upon the line, it and the fruit belong to the owners as tenants in common." A physician using no more restraint than is proper for the treat- • 1 R. S. 706, §§ 17, 20, 1 Bdm. St. Inst., Broom's Com., Broom's Com. on 657, 658 ; Auchmuty v. Ham, 1 Denio, Common Law, Estee's PI. & Prac, Hil- 595 ; and see Jones r. Gommonwealth, liard's Rem. for Torts, Hilliard on 15 Gray, 193. Torts, 3 Conw. Rob. Prac. 551, 3 id. ■' Strang v. NeiDlin, 38 How. 364. 337, 4 id., 5 id., Chit. PI., Stephen's '■'■ Auchmuty v. Ham, 1 Denio, 495. PI., Stephen's Com., Selwyn's iST. P., •i Dickson v. McCoy, 39 N. Y. 400 ; Smith's Man. of Com. Law, Tidd's and see Reg. v. Dant, Leigh & Cave, Prac. 567, 10 Cox Cr. Oas. 103. * Hoffman v. Armstrong, 46 Barb. s Gox V. Surbridge, 13 C. B. N. S. 337. (106 Bng. C. L, R.) 430. » Anthony v. Haney, 8 Bing. (31 Eng. » Townsend v. Watlien, 9 East. 277. 0. L. R.) 191. ■■ Upon the subject generally, see '" Dubois v, Beaver, 35 N. Y. 133. Addison on Torts, Black. Com., Bouv. CH. IV A.J COMPLAINT IN PAKTICULAE GASES. 297 ment of a person laboring under delirium tremens, is not liable for an assault and battery.' Assignee." — A complaint against an assignee for rent of j)rem- ises hired by the assignor, but leased by the assignee, for the best price they could obtain, paying to the landlord all they received, if it seek to charge the assignee personally, should charge him only with the value of the use and occupation, and not the price agreed to be paid by the lessor.' If the assignee enter and occupy the premises, or re-let them, he is \\&h\e personally to that extent.' A complaint by a general assignee, for the beneht of creditors, should allege that the assignment was in writing, was duly acknowledged and the certificate of acknowledgment indorsed upon such assignment before delivery thereof to the assignee; that the assignor, within twenty days after the assignment, did make and deliver to the county judge, of the county in which sucli assignor resided, an inventory or schedule as requii-ed by law ; that, within thirty days after the date of such assignment, the assignee entered into a bond to the people of the State of !N"ew York in the amount ordered and directed by the county judge of the county where the assignor resided at the date of such assign- ment, with sufficient sureties approved of by such judge, con- ditioned for the faithfvil discharge of the duties of such assignee, and for the due accounting for all moneys received by such assignee, which bond was filed in the county clerk's office of the county where the assignment is recorded.' The assignee of a mortgage must allege that the bond or indebtedness, the payment of which was secured by it, was also assigned to him,' or that the mortgage was for a new consideration paid to the mortgagor, with his assent, assigned to the plaintiff to secure the said consideration ' Symm v. Frazer, 3 Poster & Fin- N". P., Smith's Man. C. L., Story's Eq. lason, 859. Jur., Wait's Law & Pr., Waterman'a 'Upon the subject generally, see Set-off, Waterman's Eden on Inj.,Wil- Voorhies' Code, Wait's Code, Chit. PI., lard's Eq., Williams on Per. Prop. Estee's PL & Pr,, Conw. Rob. Pr. vols. ^ Jermain v. Pnttison, 46 Barb. 0. 1,3,3,4,5,6, Story's Eq. PI., Adams' '^Jermain v. Pattison, 46 Barb 13, Eq., 3 Barb. Ch. Pr., Daniel's Ch. Pr., but see Anaell v. Bdbson, 3 Cromp. & Smith's Man. Eq., Van Sant. Eq. Pr., Jer. 610. Addison on Contracts, Bl. Com., Bouv. * Hardman v. Bowen, 5 Abb. JST. S. Inst., Broom's Com., Broom's Com. 333, Laws 1860, pp. 594-5, t^^ 1, 3, 3 ; 4 Common Law, Chit, on Contracts, Cow. Edm. St. 484-5. Treat. (Kingsley's ed.). Pry's Spec. " Merritt v. Bartholie.k, 34 How. 139, Perf., Kent's Com., Kerr on Inj., Kerr 36 N. T. 44, 47 Barb. 353. on Frauds, Pars, on Contracts, Selw. 38 298 COMPLAINT IJSr PARTICULAK CASES. [CH. IV A. SO paid, to the mortgagor, ' or that no bond or other evidence of the indebtedness secui-ed by the mortgage was given therewith,^ or that the owner of the bond and mortgage assigned to the plaintiff the mortgage "and the moneys due and to grow due thereon," whicli assignment would carry the principal indebtedness.' The assignee of a lease is liable to his assignor for all damages he is compelled to pay for breaches committed by such assignee, under the implied contract to perform the lease.'' If one of two part- ners sell property insured to his copartner, he may recover upon the policy of insurance, notwithstanding the policy contain a clause that it shall be void in case of a sale of the property insured without the consent of the insurers ; but the complaint should allege that the plaintiff and his assignee were the persons insured, and owned the insured property as partners.' The assignee of a foreign executor or administrator obtains a good title and may maintain an action as such.' Attorney.' — An attorney is bound to deliver his client's papers to him in a reasonable condition. If, when delivered, they are in a disordered state, rendering expense necessary to arrange and put them in proper order, he is liable therefor.' Although relief may be given at the suit of a client against his solicitor for a loss sustained by gross negligence, yet, if the loss was in respect to a matter of conduct, as to which the advice of the solic- itor was founded on the opinions of competent surveyors as to the value of the property, and those opinions submitted to the ' Campbell v. Burcli, 1 Lans. 178. (Kingsley's ed.), Hilliard on Torts, ' Severance v. Grijjith, 2 Lans. 38. Kent's Com., Kerr on Inj., title Solici- ^ Belden v. Meeker, 2 Lans. 471-. tor, Kerr on Frauds and Mistakes, * Moule r. Garrett, Law Rep., 5 Bxch. same title, Kerr on Receivers, same 132. title. Parsons on Contracts, Reeve's ^ Hoffman y. JEtna, etc., 1 Rob. 501, Hist, of English Law, Selwvn's Nisi 19 Abb. 335, 33 N. Y. 405. Prius, Shearman and Redfield on ' Peterson v. Chemical Bank, 3 Negligence, Adams's Eq., title Solici- Rob. 605, 27 How. 491, 32 N. T. tor. Smith's Man. of Eq. (1st Am. ed.) 21, 39 How. 340 ; Middlebrook v. Mer- p. 78. 3 Steph. Com. (6th ed.) 333 et chants Bank, 41 Barb. 481, 18 Abb. seq.. Story's Eq. Jur,, Story's Eq. PI., 109. Story on Cont., 1 Wait's Law and Prac- ■■ Upon the subject generally, see tice, Waterman's Eden on Inj., Wil- Warren's Duties of Attorneys ; Living- lard's Equity Jur., see the elaborate stons's Law Magazine, January, 1S.")0, note to Sill v. Finney, 4 Fost. & p. 34, et seq. The various works upon Finl. 635. Practice : Addison on Contracts, Ad- * jSforth Western, etc., v. Sharp, 10 dison on Torts, Blackstone's Com., Exch. 451. Broom's Com. on the Common Law, Chitty on Contracts, Cowen's Treatise OH. IV A.J COMPLAINT IN PAETICULAE CASES. 299 judgment of the client, an action will not lie.' An attorney may be liable for negligence in not issuing an execution.'' A complaint which alleges that an attorney was retained to examine the title to certain premises, and to procure an estate in fee simple therein, to be conveyed to plaintiff, and alleges that he advised plaintiff to take title with incumbrances, M^hich plaintiff was compelled to pay, shows no cause of action ; the incumbrances do not prevent plaintiff from acquiring a iee." The mere fact that the services of an attorney produced no beneficial result does not prevent his recovering therefor ; it is only when they are use- less by reason of the negligence or want of proper skill of an attorney that he is not entitled to compensation,* otherwise as to one not admitted to the party's knowldge.' An attorney is liable to a printer for his fees" and to a sheriff for his fees,' but he is not liable for the fees of a referee,' unless he agrees to pay them, and takes therefor the note of the party liable.' An attorney who merely issues an execution and communicates to the sheriff the directions of his clients to seize certain specified property is not liable as a trespasser, although the seizure is wrongful," but when he refused to state whether he directed the sale by instruc- tions of his client, and challenged a suit against himself, is estop- ped from denying he acted on his own responsibility." Nor will an action lie against an attorney, who, by mistake, and without malice, brings an action, proceeds to judgment and issues an execution against the wrong party, there being two of the same name, for he should have defended the action,'^ otherwise for selling property on an execution against the wrong person by the same name,'' when the judgment has been assigned to him and he induces ' GHa/pman v. 0Juypman,'L3,-w Rep., 9 " Gook v. Bitter, 4 E. D. Smith, 254, Eq.376. 255. * Harrington v. Birnis, 3 Fost. & Finl. ' Berheclc v. Stafford, 23 How. 236, 943. 14 Abb. 285. * Elder v. Bogardus, Lalor's Sup. * Lamoreaux v. Morris, 4 How. 245 ; 116. Judson V. Gray, 11 N. Y. 408. ■* Bowman v. Tallman, 40 How. 1, " Judson v. (h'ay, 17 How. 289. affirming 37 id. 213. This case reviews '" Ford v. Williams, 13 N. Y. 578. the cases and states the liability of " ForfJv. TFiKwms,34 N. Y. 359 ; C'ooA attorneys for negligence and want of v. Hopper, 33 Mich. 511. skill. Consult Addison on Torts, title ''^ Dames v. Jenkins, 3 N. Y. Leg Attorney ; Addison on Contracts (6th Obs. 38, 11 Mees. & Wels. 745. Eng. ed.) 400, Parsons on Cont., title '^ Jarmain v. Hooper, 6 Man. & 6r. Attorneys. (46 Eng. C. L. Rep.) 837. ^ Wakeman v. Haselton, 3 Barb. Oh. 148. 300 COMPLAINT IN PARTICULAR CASES. [CH. IV A. the sheriff to levy on goods of the wrong person by indorsing on the execution the residence and business of the defendant ;' but if the attorney had not owned the judgment and had merely made the indorsement for the information of the sheriff he would not have been liable.^ An attorney who commences a suit without authority from the client is liable to him for the damages/ In an action by an attorney for services, he must aver and prove a retainer.* An executor' or guardian/ who employs an attorney, is liable to him personally for his services and he cannot recover against the executor or guardian as such.'' Auctioneer." — An auctioneer can only recover two and a half per cent on the amount of sales by him, unless a written agree- ment for additional compensation be previously made, and if he seek to recover more, such a written contract should be alleged in the complaint." Award. — In an action upon an award, an averment that it was duly published, is equivalent to an averment that the notice required by the submission was given." Author. — An author whose reputation is injured by an inac- curate edition of his work, pxiblished as his, may maintain an action against the publisher, although the publisher bo the owner of the copyright." Bailor and bailee." — It has been held that either the general ' Howies V. Senior, 4 N. Y. Leg. Obs. (Kingsley's ed.), Daniell's Chy. Prac. 374, 8 Ad. & Ellis, N, S. (55 Eng. C. L. (4tli Am. ed.). Fry on Specific Perf., E.) 677. 1 Greenl. Ev., § 369, Hilliard on Inj., ^ GJdlders v. Woolsr, 2 Ellis & Ellis Hilliard on Torts, Kent's Com., Kerr (105 Eng. C. L. E.) 287. on Frauds and Mistake, Parsons on ' MudryY. Newman, 1 Cromp., Mees. Cont., Selwyn's N. P., Smith's Man. of & Eosc. 403 ; MvM>art v. Phillips, 13 Com. Law, Smith's Manual of Eq., Mees. & Wels. 703; Bayley v. Buck- Story's Eq. Jur., Story on Sales, 1 land, 1 Exch. 1 ; Wright v. Gastle, Wait's Law and Prac, Willard's Eq. 3 Meriv. 13. Jur. * Burghart v. Gardner, 3 Barb. 64. " Leeds v. Bowen, 1 Rob. 10. ^Wilcox r. Smith, 36 Barb. 316; ^'' Matthews v. Matthews, 2 Cortex, 106. Ferrin v. Myrick, 41 N. Y. 315, rever- " ArclAold v. Sweet, 1 Moody & Rob. sing, 58 Barb. 76. 163. 'Bowman v. Tallman, 37 How. 213, "'Upon the subject generally see 2 Rob. 385, 41 N. Y. 619. Edwards on Bailments, Story on Bail- ' Id. ments, Addison on Cont., Addison on * Upon the subject generally, see Torts, Ang. & Ames' Corp., Black. Com., Adams's Eq., Addison on Gout., Addi- Bouv. Inst., Bouv. Law Diet., Broom's son on Torts, Benjamin on Sales, Com., Broom's Com. on Com. Law, Bouv. Inst., Broom's Com. ou Com. Chitty on Cont., Chitty on Pleading, Law; Chitty on Cont., Cowen's Tr. Cow. Tr. (Kingsley's ed.), Hilliard on OH. IV A.] COMPLAINT IN PARTICULAK CASES. 301 owner or a bailee may recover for the conversion of tlie subject of tlie bailment ;' and that ordinarily, as against a wrongdoer, one having a special property may recover the full value of the property." It would clearly be otherwise where a pledgee sues the owner or one claiming under him to recover for the injury to his special property.' The recovery of a judgment against the general owner is ordinarily a bar to an action by his bailee, who has no special lien upon or title to the goods converted,' and so, in such a case, an action iy the owner.' This rule, however, does not apply to a case where the bailee has a lien upon the property, for, if the owner were allowed by a recovery to bar his action, his special property might be rendered worthless by the wrong of a third person and the insolvency of the general owner." Even, after judgment in such an action, if a suit were pending by the bailee, the court could and would undoubtedly relieve the defendant on motion in the action by the bailor.' Under the old practice, to entitle the general owner to maintain trover or trespass, it was necessary that he should have or be legally entitled to the possession, and he could not maintain the action if the property were in the hands of a pledgee at the taking,' and since the Code, one not in possession of property but holding a chattel mortgage, under which he was not entitled to possession, cannot maintain such actions against an execution creditor of the mortgagor who sold the property before the mortgagor was entitled to possession," for in such case the creditor has a right to sell the mortgagor's interest in the property, and doing so would not be a conversion. A pawnor may maintain an action for conversion of the prop- erty pledged since the Code,'" but as trespass or trover will only Remedies for Torts, Hilliard on Torts, Chadvoick v. Lamb, 29 Barb. 518 : Kent's Com., Parsons on Cont., Eedf. Story on Bailment (7t]i ed.), § 352. on Railways, 2 Conw. Rob. Prac, 3 id., * Greene v. Olarlc, 12 N. y! 343, 353, 4 id., 5 id., 6 id., Sedg. on Dam., Sel- ^ gjorj. „^ Bailm. (7th ed.), § 353. wyn's N. P., Shear, and Redf. on JSTeg., ° Gooding v. Shea, 103 JIass. 360 Smith's Man. of Com. Law, Stephen's Hasbrouck v. Lounsberry, 26 N. Y, Com., Story's Bq. Jm-., 1 Wait's Law 598 ; Story on Bailm. (7th ed.), § 353 , and Prac, Williams on Pers. Prop., 35 Edwards on Factors and Brokers, 109 etseq., marg.p. and notes to Am. Ed. ' Oikfiristv. Comfort, 36 How. 394, ' Greene v. Clark, 12 N. Y. 343; 45 Barb. 120, 1 Keyes, 65, 38 N. Y. Boioen v. Fenner, 40 Barb. 383 ; Sass 70, 2 Am. Law Times, U. S. Courts V. Pierce, 16 Barb. 595 ; Paddock v. Rep. 188. Wing, 16 How. 547 ; Edwards on Fac- » BusJi v. Lyon, 9 Cow. 53. tors and Brokers, 109. s Goulet v. Asseler, 22 N. Y. 335. « Buck V. Remsen, 34 N. Y. 883. '» Story on Bailment (7th ed.), § 352 • 3 S dg. on Dam. (4th ed.), 563 ; Lion v. Orser, 5 Duer, 501, 506. 302 COMPLAINT IN PAETICULAR CASES. [CH. IV A. lie by one who has or is entitled to possession, it seems the com- plaint should be framed according to the facts to recover for the injury to his reyersionary interest in the property,' although it is difficult to see why he should not recover the full value of the property, as the taking by a wrong-doer would not discharge the pawnor's indebtedness, and the pawnee could recover the same of him without attempting recourse against the wrong-doer. Should he sue and recover, deducting the pawnee's interest, after the recovery of judgment by the pawnor, he could not maintain another action against the wrong-doer, because he would not be entitled to split a single cause of action — the taking or con- version." The plaintiff lent his shed to the defendant to make therein a signboard, and D, a carpenter employed by the defendant, lighted his pipe from a match with a shaving, and thereby set fire to the shavings on the ground, by which the shed was burned. The defendant is not liable either as bailee or as master and servant.' The hirer of a horse and wagon suitable for carrying two may take another person to ride with him, and is not liable therefor,* and is only bound to treat the horse as carefully as any man of com- mon discretion would treat his own, and supply it with suitable food. ' And so the hirer is not bound to drive the horse himself, he is entitled to allow a competent person to do so.° The bailee of a horse must return him to the owner, and the fact that, at the time of the bailment, the horse was kept by the owner with a third person, will not authorize the bailee to return to such third person after he has ceased to be the bailor's agent ; and, if he do so, it is a conversion.' The bailee is liable for negligence of any person to whom he intrusts a duty, as that of a hostler in not putting the bits in a horse's mouth.' If the bailee drive the horse further or differently from the understanding at the bail- ' Goulet V. Assder, 33 N. T. 336; v. Carr,lZGi&j,-2'U; Scrantonx.Bax- Manning v. Monaqhmi, 10 Bosw. 331. ter, 4 Sandf. 8 ; Harrison v. Marshall, 4 « Tedder v. Vedder, 1 Denio, 357, E. D. Smith, 371. ^ Williams v. Jones, 3 Hurl. & Colt. ' Camroys v. Scm-r, 9 Carr & P. (38 356 ; affirmed iu Exchequer Chamber, Bng. C. L. Rep.) 383 ; but see Scranton id. 603. Y. Baxter, 4 Sandf. 9. ^ Ilairington v. Snyder, 3 Barb. '' Esmni/ y. Fanning, 9 Barb. 176, 5 380. How. 328! « Harrington v. Snyder, 3 Barb, 380 ; » Hall v. Warner, 60 Barb. 198. New*.on v. Pope, 1 Cow. 109 ; Edwards CH. IV A.J COMPLAINT IN PARTICULAR CASES. SOS ment, the bailor may sue the bailee therefor, without returning the hire of the horse.' Banker. — A banker who, without justihable cause, discjoses the state of a customer's account is liable for the damages, at least if spe- cial damages accrue.' He is not liable for a box kept by him with- out compensation, even if stolen by one of his clerks, unless he was guilty of gross negligence ; " otherwise, if kept for a commission.* Bill of exchange. — In an action against the acceptor of a bill of exchange in the body of it, made payable at a particular place, but accepted generally, it is not necessary to aver or prove present- ment at the place where it is made payable. ° Bond.° — A bond which binds the obligor to expend $350 per annum for the support of the obligor's wife and also to keep him harmless, an account of the support and maintenance of the wife is broken, if the obligee is subjected to liability on account of the wife's support, although the $350 is expended according to the terms of the bond.' On a bond to indemnify the obligor against liability, he may recover the full amount of a liability without payment thereof,' or on an agreement to pay a certain debt." Otherwise, to indemnify and save the obligee harmless ;'° on a covenant to indemnify over against costs and damages, he cannot recover what he had to pay over for raising money." Under an agreement with one partner to pay certain partner- ship debts and to keep him harmless from and against such debts, the obligee cannot recover costs of supplementary proceedings against the obligor. '° Otherwise, as to a surety by statute." In an action upon a bond which authorizes the obligee at his elec- ' DisbroiD v. Ten Broeek, 4 E. D. Smitli, Po7id, 19 Wend. 433 ; Wright v. Whiting, 397 ; Wheeloek v. WJieelright, 5 Mass. 40 Barb. 385 ; Jarvis v. Sewall, id. 449. 104; Oojrp'sv. 5er«ar£Z,3Ld.Raym. 915. ^ GhurchUl v. Hunt, 3 Denio, 331; ' Hardy v. Veasey, L. &., 3 Exch. Thomas v. Allen, 1 Hill, 145 ; but see 107 ; Poster y. Bank, etc., 3 P. and P. 314. Sector, etc., v. Higgins, 4 Rob. 374. 8 OoUin V. McMuUin, L. R, , 3 Priv. C. '» MoO-ee v. Boen, 4 Abb. 10 ; Aber- O.Si.1; Foster v. Essex, eto.,liyLa.ss.^l^. demy. Blaakman, 6 Hill, 334; Gilbert ^ Be W. 8.Gompcmy,h. R., 6 Ch.A^-p. r. Wyman, 1 N. Y. 550; Wright v. 313. Whiting, 40 Barb. 235. ^ Elliot Y. Fcdley, 10 Irish L. R, 485 ; " Low v. Archer, 13 N. T. 278. Selby V. Eden, 3 Bing. (11 Bng. C. L.) " Wright y. Whiting, 40 Barb. 385. 611; Fayle v. Bird, 6 Barn. & Cress. '^Laws 1858, p. 506'; 4 Edm. St. 483 ; (13 Eng. C. L.) 581 ; Davis v. O'Hara, 5 see Holmes v. Weed, 34 Barb. 546 • Irish L. R. 837. and Biirge on Surety-ship, 363, before ' See Contracts. statute ; and see Kingsland v. Braisted, ' Scheive v. Kaiser, 36 How. 196. 3 Lang. 18, in an action against Btock- * MaO-ee v. Boen, 4 Abb. 8 ; Webb v. holders for the debt of an association. 3(»4 COMPLAINT IN" PAKTICULAE OASES. [CH. IV A. tion to consider the principal as due on failure to pay the interest, the complaint must contain an allegation that he so elects, or he can only recover the interest.' A bond with a blank for the name of the obligee cannot be recovered upon at law or in equity." Under our Code, however, he could set up a mistake in the bond, pray for its reformation and recover the amount in the same action. When a father gave a bond for a £1,000 for his son's fidelity, and he embezzled £200, which the father paid and re- quested the obligor not to trust him further, but he did so, and the son embezzled £1,000 more, it was held the father was liable, but only for one thousand in all f and the surety cannot by notice terminate his liability for future defaults or embezzlements by the party for whose fidelity he is surety.* Breach,^ how alleged. — The party suing another for breach of a contract, requiring concurrent acts, must avail himself of the pro- visions of the Code," or must allege tender or offer of perform- ance ' of all required by the terms of the agreement.' Broker." — When a broker of real estate has brought the minds of the vendor and vendee to an agreement, he is entitled to his com- missions whether it has been reduced to writing or not," and the principal cannot, after being brought by the broker into commu- nication with a purchaser, revoke the broker's authority, or, taking the negotiations into his own hands and completing the sale, deprive the broker of his commissions," but the mere fact that the ' Smoard v. Farley, 3 Rob. 599. Addison on Contracts, Addison on ^Squire v. Whitt07i, 1 House Lords Torts, Benj. on Sales, Bouv. Law Die, Cases, 333. Bouv. Inst., Broom's Com., Broom's ' Shepherd v. Beecher, 2 Peere Wil- Com. on Common Law, Chit, on Con- liams, 289. tracts, Chit. Pl.,Cowen's Tr. (Kingsleys * Pitman's Pr. and Surety, 53 ; Theo- ed.), DanieU's Ch. Pr., Edwards on Fac- bald's Pr. and Surety, 100. tors and Brokers, Estee's PL and Pr., ^ Upon the subject generally, see Hilliard on Torts, Kent's Com., Pars. Chitty's PL, Gould's PL, Gonw. Rob. on Contracts, 3 Conw. Rob. Pr., 4 id., Pr., Estee's PL, Selw. N. P., Stephen's 6 id., Sehvyn's N. P., Smith's Man. of PL, Story's Eq. Jur., Story's Eq. PL Common Law, Stephen's Com., Story * Section 163. on Sales, 1 Wait's Law and Pr., Smith ■■ Smith V. Wright, 1 Abb. 243, Court on Contract, 405 marg. p. of Appeals ; Dunham v. Mann, 8 IST. T. '" Barnard v. Moiinot, 3-3 How. 440, 508 ; i««<«r y. ./ezoert, 11 N. Y. 453 ; «c- 3 Keyes, 303; Wayland v. Lysen, 9 kettv. Briee,22Kow. 197 ; Frei/Y. John- Abb. N. S. 79; Sague v. O'Connor, son, id. 334, 335 ; Baker v. Higgins, 31 41 How. 387. N. Y. 397 ; Pattridge v. Q-ilder ineister , " Stillman v. Mitchell, 2 Rob. 523, 1 Keyes, 93. aflBrmed in Court of Appeals, id. 539 8 Busted v. Craig, 36 IST. Y. 323. note ; Hague v. O'Connor, 41 How. 287 ; 'Upon the subject generally, see Lincoln^. McClatehie,lQAxa.'L.'R.'S.^. Russell's Law of Factor.^ and Brokers, G34 ; Keyes v. Johnson, 68 Penu. St. 43. CH. IV A.] COMPLAINT IN PARTICULATi CASES. 305 broker introduced the purchaser to the seller will not entitle him to his commissions, unless it appear that the introduction was the foundation on which the negotiation proceeded.' It must appear that the agency of the broker was in fact the procuring cause of the sale." But if the negotiations in fact, and in good faith, fall through and are abandoned, and new ones afterward spring up, resulting in a sale, the broker is not entitled to his commissions,' nor if the negotiations were begun by the principal and carried on without the interference of the broker ;■* nor unless a sale takes place.' One neighbor who introduces a purchaser to another is not entitled to commissions as a broker," but he may recover the reason- able value of his services ;' nor can a broker, employed by dif- ferent parties to exchange their lands, recover commissions from both of them ;° the broker must show an agency on his part in effecting the sale," and an employment by the vendor to effect a sale ;'° and when his employment is special he must effect a sale according thereto " unless the principal adopt the sale made and takes the benefit of it.'" If a broker report sales at less than the amount realized, the difference may be recovered, but commis- sions theretofore paid cannot be recovered back." If two brokers are employed, only the one effecting the sale is entitled to com- missions, although the other, hearing of the negotiations, called on the purchaser and urged him to make the purchase." A broker is entitled to commissions if he assist in negotiating a sale, although the purchaser be brought to him by the principal.'" A broker for negotiating a charter of a vessel to a party is not jper se void. Where a broker negotiated such a contract at $200 per day and the government, without his consent,, reduced it to $120 per day, held the change was not such as to deprive him of his V. Martin, 8 Carr & P. ' Mrien v. LoriUa/rd, 2 Keyeg, 567. (34 Eug. C. L.) 1 ; Dreyer v. Baueli, 42 * Pugsley v. Murray, 4 E. D. Smitli How. 22. 345. ' McOlcme v. Paine, 41 How. 141, 3 ' Q-oodspeed v. Robertson, 1 Hilt. 423 Sweeny, 407 ; Dreyer v. Ranch, 43 Briggs v. Rowe, 4 Keyes, 434. How. 22. '» ffoodspeed v. Robertson, 1 Hilt. 423, ' Bwrnard v. Monnot, 34 Barb. 91 ; " Jacobs v. Kolf, 3 Hilt. 183. Stillman v. MiteUll, 3 Rob. 357, 358 ; '' Redfield v. Tegg, 38 JST. T. 313 ; Nes Tooms V. Alexander, 101 Mass. 255. bett v. Hilser, 49 Missouri, 883. ■* Oushman v. Gori, 1 Hilt. 356. " Boston, efc., v. Journeay, 1 Daly, 190 ^ Pratt V. Patterson, 7 Phila. Rep. 36 N. T. 384. 135 ; Brennan v. Perry, id. 343. '* Briggs v. Rowe, 4 Keyes, 434. « Lyon V. Valentine, 83 Barb. 271. '^ Uedfield v. Tegg, 88 N. Y. 312. 39 306 COMPLAINT IN PAETICULAK CASES. [CH. IV A. commissions on the reduced compensation.' An agreement that the broker shall have no commission, if the sale be made by the owners, means a sale made to a purchaser found by him wholly without the broker's procurement." and this notwithstanding the broker gave the purchaser a wrong price, if the owner himself conducted the negotiations.' Carriers." — An action will not lie by the seller of merchandise against a carrier by whom a fraudulent purchaser thereof has shipped it in the usual course of business without notice of the fraud, the carrier having given the fraudulent purchaser a nego- tiable bill of lading.' A carrier who has contracted to carry goods to a particular point is liable if he store them at an inter- mediate point, although he considers the further carriage thereof unsafe. If he consider such carriage unsafe, he must notify the con- signor thereof, and that, unless the goods are called for at an inter- mediate point, he will store them there.' Without notice of the vactual value of a package, carriers have a right to assume that it was of no greater value than its external appearance warranted.' The shipper of goods, who gives the carrier no intimation of the object of shipping them, cannot, in an action to recover damages for not transporting them within a proper time, recover as special damages his hotel bills while waiting for them ; such damages are too remote.' The owner thereof shipped one thousand six hundred and seventy-six bags of meal, some of which weighed twelve stone each, and some eight stone. They were shipped from lighters, all mixed together, the carrier giving two bills of lading, one for one thousand two hundred bags, and the other for four hundred ' Eowlamd v. Ooffin, 33 How. 300. Remedy for Torts, title Com. Carrier ; ''Lincoln y. MeClatehie, 10 Am. L. Hilliard on Torts, same title; Kent's Reg. N. S. 634. Com., Parsons on Cont., 3 Conw. Rob. « Id. Prac, 3 id., 4 id., 5 id., 6 id., Sedg. on * Upon tlie subject generally, see Dam., Selwyn's N. P., Sbear. & Redf. Angell on Carriers, Cbitty on Carriers, Neg., Smith's Man. of Com. Law, Ste- Redfield on Railways, Addison on phen's Com., 1 Wait's Law & Prac. Cont., Addison on Torts, Benjamin on ' Western, etc., v. Marshall, 1 Tra^s. Sales, Blackstone's Com., Bouvier's App. 366, 6 Abb. N. S. 280. Inst., Broom's Com., Broom's Com. on ^ Van Winkle v. Adams' Ex. Go., 3 Common Law, Chitty on Cont., Chitty's Rob. 59. PI., Cowen's "Treatise (Kingsley's ed.), ' Warner v. Western TroMS. Co., 5 Edwards on Bailments, title Common Rob. 490. Carriers ; Story on Bailments, Story on ' Woodger v. Great Western Trans. Sales, Bstee's PI. & Prac, title Common Co., L. R., 3 C. P. 318. Carrier ; Greenleaf 's Ev., Hilliard's CH. IV A.J COMPLAINT IN PARTICULAR CASES. 307 and sixty-seven bags — gross thirty-five tons nine hundred weiglit — and, at the foot of it was. " Contents unknown, and not respon- sible for weight." The bags were all marked ahke, and no means were taken to identify by marks, in the bills of lading, any par- ticular bags, and there was nothing on the face of the bills of lading by which the carrier could see that they were intended for diiferent consignees. The carrier, by mistake, delivered to plain- tiff, the consignee of four hundred and sixty-seven bags of twelve stone each, several of the bags weighing only eight stone. Held^ he was responsible for not delivering bags of the proper weight.' The owners of goods being imposed upon by a fictitious order sent by H., a person employed by them to obtain orders, forwarded goods by defendants, addressed W. C. Tait & Co., 71 George street, Glasgow, the name and address given plaintiifs by H. There was no such firm as Tait & Co., but H. had made arrangements at 71 George street, for receiving letters addressed there under that name. On arrival of the goods at Glasgow, defendants, /bi^ lowing usual course of iusiness, sent a notice to the address appearing on the goods, requesting their removal, and stating that the notice must be produced, indorsed, as a delivery order. H. received it, indorsed it Tait & Co., and on presenting it so indorsed obtained the goods. Jleld, defendants were not liable, the person designated as Tait & Co. having got the goods f otherwise, if the delivery was not according to the usual course of business," or where the goods are addressed to a person at a particular street or number, and no such person residing therein being found, the goods are delivered to one claiming to be the person intended, there being no proof he was the person to whom the shippers consigned the goods.' If a carrier fraudulently represents the character of his vessel and thereby makes a contract with the shipper to carry goods at his risk, he to insure at the carrier's expense, but failing to effect an insurance, because the vessel was not as represented before the voyage began, prohibited the carrier from taking the goods, which he persisted in doing. Jleld, the shipper might declare against the carrier, on the theory that he contracted to carry the ' Bradley v. Dunipaoe, 1 Hurl. & ^ Stephenson v. Hart, 4 Bing. 476. Colt. 521. " Duff V. Budd, 3 Brod. & Bing. 177, ^ McEean v. Melwr , Law Rep., 6 7 Eng. C. L. Exch. 36, 39 ; distinguishing, Stephen- son V. S(wt, 4 Bing. (13 Eng. C. L.) 476. 308 COMPLAINT IN PAETICULAR CASES. [CH. IV A. goods without limitation of his liability.' The carrier is not liable for goods taken from him by legal process, if he im/mediateiy notify the bailor of such taking/ provided he have not been guilty of negligence in failing to deliver the goods within a reasonable time. Otherwise he is liable/ and it seems an action will not lie where he has delivered the goods to the true owner voluntarily." A car- rier must ordinarily deliver to the consignee. If usage excuse this, he must always give notice to the consignee of the arrival of the property,* and the landing or delivery must be at a seasonable and proper time." Where a carrier agrees to transport goods in a certain ship, but takes a portion of them on another, which arrives at a later day, the rule of damages is not the difference between the market price of the goods on the day when they ought to have arrived and that on which they did arrive, but only any depreciation or injury to the goods themselves." Checks. — A check payable to bills payable or order may, without alleging an indorsement thereof, be declared upon as payable to bearer, if the plaintiff allege that it was transferred and delivered to him for a valuable consideration.' A check was certified by the defendant, a bank, on which it was drawn, to be " good," but the drawer subsequently notified the bank that it was procured by fraud, and stopped payment ; on presentation for payment, the bank, instead of erasing the word " good," wi-ote on the check " payment stopped," and re-delivered it to the payee, who erased the words " payment stopped," and placed a revenue stamp over the erasure. Held, that one who received the check in good faith, for value, was entitled to recover thereon against the bank.' Claim and delivery.' — This action lies, under the Code, in ' Dauchy v. SiUiman, 2 Lans. 361 ; ' Upon the subject generally, see affirmed in Court of Appeals Feb. 7, the following works : Title Replevin, 1871. Chitty's PI., Addison on Torts, Black- ^ Blimen v. Hudson Biv. R. JR., 36 N. stone's Com., Bouv. Inst., Bouv. Law Y. 408. Diet., Broom's Com., Broom's Com. on ^ Mierson v. Hope, 3 Sweeny, 561. Com. Law, Estee's PI. and Pr., Greenl. * Mierson v. Hope, 3 Sweeny, 561 ; Ev., Hilliard's Remedies for Torts, McAndrew v. WMtloclc., id. 633. Morrison's Replevin, Kent's Com,, ^ McAndreio v. Whitlock,'S, Sweeny, 3 Conw. Rob. Pr., 4 id., 5 id., 6 id., 633. Sedg. on Dam., Selw. N. P., Smith's * Kirldand v. Leary, 8 Sweeny, 677. Man. Com. Law, 500 (1st Am. ed.), ■" IfecJimiws, etc. v. Sraiton, 36 How. Stephen's Com.. 3 Wait's Law and Pr., 190, 3 Keyes, 365. Williams on Pers. Prop., the various ' Nassau Bank v. Broadway Bank, works upon Practice, and also Prece- 54 Barb. 336. dents. UH. IV A.J COMl'LAINT IN PAKTICULAB CASES. 309 all cases where replevin might have been maintained under the Revised Statutes.' If the property be restored to plaintiff, and accepted by him, before the summons is served, the action does not lie although the papers were in the sheriff's hands for service, and plaintiffi insisted upon the payment of costs when the prop- erty was accepted by him.^ But if the plaintiff' obtain possession after suit brought from a person other than the defendant, the action still lies." "Where the complaint charges that the defendants have become possessed of and wrongfully detain the plaintiffs' goods and chattels, and the plaintiff's seek to recover upon the ground that the plaintiffs' title thereto was never changed because defendants purchased them and procured their delivery through the means of false representations as to their solvency, it is not necessary that the complaint should aver a demand of the goods, or contain an allegation of the defendants' insolvency, or of any of the facts showing the alleged fraud, for that would require the plaintiff to plead his proof instead of the facts ;* but in such case an action cannot be maintained against an assignee of the purchaser, who has innocently acquired possession from the appa- rent owner, without a demand to deliver up the property," and if there be several assignees a demand must be made upon each." A demand after suit may be evidence of a conversion before suit. The action lies against a defendant although he has parted with the possession of the property' unless he pur- chased as a mere agent.' A fraudulent purchaser and his assignee are liable to a joint action." The complaint must allege that plaintiff' is the owner of or entitled to the possession of the goods, alleging that defendant unlawfully detains them is not sufhcient.'" If an agent, who orders goods for his principal, change the order to one for himself, and the person furnishing them assents to such ' Boss V. Cassidy, 27 How. 416. * Jessop v. Miller, 1 Keyes, 321. ^ Ifosser V. Gorimn, 36 How. 540; '' Brockaway v. Burnap, \QB3,vh.SQ9; Christie v. Corbett, 34 id. 19. Ellis v. Lersner, 48 id. 539, 546 ; 2 Traci/ V. JSTew Tork,etc., 9 Bosw. 396. Nichols v. Michael, 23 N. Y. 264 ; Nash * Hunter v. Hudson jRiner, etc., 20 v. Fredericks, 12 Abb. 147, must be Barb. 493. regarded as overruled. ''White v. JDodds, 42 Barb. 554; '^ Haskins v. Kellei/, lUoh. IGO. Pearse v. Pettis, 47 id. 276 ; Sluyter v. ' Jessop v. Miller, 1 Keyes, 321 ; Lati- Williams, 37 How. 109 (see post, mer v. Wheeler, id. 468. Demand) ; Jessop v. Miller, 1 Keyes, " Scofield v. Whitelegge, 10 Abb. N 321 ; Latimer v. Wheeler, id. 468 ; S. 104. Boss V. Cassidy, 27 How. 416. 310 COMPLAINT IJSr PARTICULAR CASES. [CII. IV A. change, the principal obtains no title to them ;' so where scrip purchased bj a person as agent for another, is taken in his own name, and has stood in tbat way on the books of the corporation for several years, it waa a legal inference that it was by consent or permission of the principal. A demand and refusal in such a case will not give the principal the title to the scrip, and possession without a transfer would be of no avail to him. A party cannot recover scrip of which the legal title is in the defendant by his permission in an action of replevin. If he desire the identical scrip, his remedj'' is in equity. If damages only, it seems he can maintain an action on the ease.' The com- plaint must allege a general or specific ownership in the plaintiff, or it is invalid. It is not sufficient to charge that defendant " has become possessed of and wrongfully detains from this plaintiff" the property claimed.' While a replevin suit is pend- ing the defendant cannot maintain replevin against the plaintiff for its return." Cloud upon title." — The complaint, in an action to remove a cloud upon title, must show facts which show that the alleged cloud does not carry upon its face the evidence of its invalidity.' If evidence aliionde be required to establish the invalidity the action lies ;' as where the deed should have been to the plaintiff instead of the defendant.* An action will lie to determine the amount due upon a mortgage, and that upon payment of the amount found due it be satisfied of record. ° And although the complaint allege that it has been paid in full, the court should decree its cancellation oii payment of the amount due and costs, although the complaint contain no offer to pay any sum." ' Matkay v. Mmlcay, 1 Lans. 506. ' Ward v. Demy, 16 N. Y. 522 ; 2 Wheeler v. Allen, 49 Barb. 460 ; Hatch v. City of Buffalo, 38 id. 276 ; Wight V. Wood, 57 id. 471 ; Stokoe v. Crooke v. Andrews, 40 id. 547 ; Master- Bobson, 3 Vesey & Beames, 51, 53, note, son v. Hoyt, 55 Barb. 520. * Sohojield v. Wliitelegge, 12 Abb. ' Buffalo, etc., v. Lampson, 47 Barb. N. S. 320. 534 ; Fonda v. Sage, 46 id. 109. * Gla/rk v. West, 23 Mich. 342. « Sutherland v. Rose, 47 Barb. 144 ; " Upon the subject generally, see Clarke's Oh. 321, mar^. p., Moak's note. Adams's Eq., Estee's PI. and Prac, '° Sutlierland v. Rose, 47 Barb. 144, Daniell's Chan. Prac, tit. Quia Timet, distinguishing Campbell v. Consalus, Kerr on Inj., Kerr on Frauds. (1st Am. 25 N. Y. 613; Kerr on Inj. (1st Eng. ed.) 233 ; Smith's Man. of Eq. (1st Am. ed.) 127; Clarke's Chy. 366, marg.p., ed.) 396; 1 Story's Eq. Jur., 55^^694- Moak's note; Beecher \. Ackerman, 1 711 ; Willard's Eq. Jur. 328, et seq. Abb. N. S. 141, 1 Rob. 30. « Ward V. Dewey, 16 TST. Y. 519, 523 ; Peck V. Brown, 3 Rob. 138-9. CH. IV A.] COMPLAINT IN PARTICULAR CASES. 311 Oommissioner of highways. — A commissioner of highways has no general authority as such to horrow money, and a com- plaint which merely alleges that the defendant's predecessor borrowed money of the plaintiff', and gave him a note therefor, does not state a valid cause of action.' TS"o action lies against commissioners of highways for neglecting to repair a highway/ unless it be specially averred in the complaint that they were, at the time of the injury, in possession of the requisite amount of public funds to make the needful repairs.^ Eut if they have the requisite funds in their hands, or the legal power to procure them, they are bound to repair highways and bridges out of repair with reasonable and ordinary care and diligence, provided they have actual or presumptive notice of the necessity for such repairs. If, under such circumstances, th^y omit their duty they are liable in a civil action to one who sustains special damages from such neglect.' Commissioners of highways are authorized to maintain any action against any railroad corporation that may be necessary or proper to sustain the rights of the public in or to any highway, and to enforce the performance of any duty enjoined upon any such corporation in relation to any highway in their town." They may, notwithstanding, proceed against a railroad company by mandamus to compel it to restore a road to its former usefulness.' Commission merchant or factor.' — A commission merchant who speoially agrees to sell goods intrusted to him for sale for the highest market price, and to make extraordinary efforts to sell the same for the highest price, for which efforts he was to ' Van AUtyne v. Freday, 41 N. Y. » People r. Troy, etc., 37 How. 427. 174; Baker v. Loomis, 6 Hill, 463. 'Upon the subject generally, see ^ Young v. Davis, 7 Hurl. & Norm. Edwards on Factors and Brokers, Ad- 760, affirmed, 2 Hurl. & Colt. 197 ; dison on Contracts, Addison on Torts, Garlinghouse v. Jacobs, 39 N. Y. 297, title Factor ; Benjamin on Sales, title 310 ; Granger v. Pulaski, 36 Ark. 87. Factors ; Bouv. Inst., CMtty on Cont. ' Smith V. WrigJit, 27 Barb. 631 ; marg. p. 196, Oowen's Tr. (Kingsley's Adsit V. Brady, 4 Hill, 631. ed.), title Factor ; Edwards on Bail- * Sever v. Barkhoof, 44 N. Y. 113 ; ments, same title ; 3 Estee's PI. and Commission of Appeal, Dec, 1870 ; see, Prac. 189, 883, Greenl. Bv., title Factor ; also, 55 111. 346, id. 318, 54 id. 84 ; ^tZsii Kent's Com. , same title ; Parsons on V. Brady, 4 Hill, 631 ; Bobinson v. Cont., same title ; 1 Conw. Rob. Prac. Chamberlain, 34 N. Y. 389 ; Griffith same title, 2 id., 3 id., o id., 6 id., Sel- V. FoUet, 30 Barb. 630 ; Hicks v. Born, wyn's N. P., Smith's Man. Com. Law, 42 N. Y. 53, 9 Abb. N. S. 47. title Factor; Stephen's Com., same ' Laws 1855, p. 388, 3 Edm. Stats, title ; Story on Sales, same title ; 1 538 ; Laws 1835, p. 340, 3 Edm. Stats. Wait's Law and Prac, same title. 583, 312 COMl^LAINT IN PAETICULAR CASES. [CH. IV A. receive an extra commission, is liable to the owner of the goods if he do not make every reasonable and diligent effort to obtain the highest market price for the property.' But in the absence of a special agreement he is bound only to exercise ordinary and reasonable care and skill." If he sell contrary to instructions, he is liable,' but if he be instructed to wait until an expected law has produced its results, he may sell, after waiting a reasonable time after its passage, if he then sell with reasonable care and prudence.* Where a factor has made advances upon property con- signed to him for sale, the owner cannot control his right to sell at a proper time and with reasonable skill, and re-imburse himself,' provided the owner be first requested to repay the advances and refuse to do so within a reasonable time," unless the factor re- ceived the property under instructions not to sell until a certain time, or in a certain manner, and thereafter made the advances which are then presumed to be made under an agreement to comply with such instructions.' A factor suing for advances must allege that the proceeds of sales of the property consigned were not sufficient to re-imburse himself, and the amount of such sales,' when he may recover siich deficiency of the consignor personally.' Consolidated action. — In a consolidated action it is not neces- sary to serve a new complaint. The issues in all the actions are tried as if raised by one complaint and one answer. The sum- monses and pleadings in all should be incorporated in the judg- ment roll," but costs of onlj' one action can be recovered unless the order for consolidation specially provide for the recovery of costs in all up to the making of the order." Construction of deeds. — The grcmtor in a trust deed, as the legal owner of property conveyed, cannot maintain an action to obtain a construction of it. The trustee, or any one requiring the execution of the trust, may however do so." ' lAnsley v. Carpenter, 4 Rob. 201. ■" Brown v. Mi-Gran, 14 Pet. 479. ^ Milbank v. Dennistoun, 10 Bosw. ^ Oihon v. Stanton, H N.Y. 4!76. 382. » Blackmar v. Thomas, 28 N. Y. 67, 3 Scott V. Sogers, :il N. Y. 076 : Ed- 71. wards' Factors and Brokers, SS lli-24. '« 2 Till. & Shear. Pr. 283. ^ MiUbank\.Denistoun,21i^.Y.'S86; ^^ Jihike v. Miehigaii, etc., 17 How. reversing 1 Bosw. 246. 22S ; Newman v. Og'den,^ Ch. Sent. 40. ' Meld V. Farrington, 10 Wall. 141. opinion of Willard, Vice-Chancellor. " Marfield v. Goodhue, 3 N. Y. 62 ; " Levy v. Sart, 54 Barb. 249. Brown v. McOran, 14 Pet. 479. CH. rVA.] COMPLAINT IN PABTICULAK CASE^ . 313 Construction of wills.' — The executors named in a will may bring a suit for construction of doubtful provisions therein," and persons interested in personal property, bequeathed by a testator in trust, may bring such a suit ; ^ otherwise as to heirs,* and, it seems, a mere legatee.' In an action to obtain construction of a will, the complaint should show that the testator left property, and, also, whether real and personal, or both." The person interested in the trust property may, in certain cases, proceed against the executor or trustee hj petition to compel him to pay over the trust property or its increase, when the court will construe the will or trust deed.' A legatee may also file a bill for his legacy, when the court will necessarily be obliged to give the portion of the will relating thereto a construction.* Conversion.' — One who intrusts a bill for collection to the drawer, who delivers it to his attorney for the same purpose, can- not maintain an action against the attorney who advances money on the note, and then collects it for conversion of the note or the money received in payment. The drawee being the apparent owner, the bill is not to be treated like a horse or a chattel in the hands of one who is not the real owner." One who receives prop- erty under an agreement to pay for it or return it, pays part and gives his due bill for the balance, but refuses to return the property on demand, is liable for converting it." The ven- ' See Adams's Equity, Fonblanque's family," to mean shall marry and have Equity, Story's Equity, Smith's Man- ual of Equity, Willard's Equity, title * Bowers v. Brower, 9 N. Y. Leg. Wills ; Jarman on Wills, Roper on Obs. 196, Court of Appeals, Dec, 1850. Legacies, Redfield on Wills, Williams ' Upon the subject generally, see on Executors. works on Practice, titles Conversion, ' Hunter v. Hunter, 17 Barb. 25, 30 ; Demand, Trespass and Trover ; also Tucker v. Tucker, 5 N. Y. 408 ; Smith Addison on Torts, title Conversion ; V. Smith, i Paige, 271. Blacks. Com., Bouv. Inst., Broom's ^ Bowers v. Smith, 10 Paige, 193 ; 1 Com., Broom's Com. on Com. Law, Redfield on Wills, 438 ; Walrath v. Cowen's Treatise (Kingsley's ed.), title Handy, 24 How. 353. Trover; Estee's PI. & Prac., title Con- " Bowers v. Smith, 10 Paige, 193 ; version ; 2 Greenl. Ev., S5§ 642-648, 1 Post V. Hover, 33 N. Y. 602 ; Walrath Conw. Rob. Prac. 504, 3 'id., title Tro- V. Handy, 24 Kow. 353. ver, Nos. 6, 7, 8 ; 6 ('ouw. Rob. Prac, ti- * Hdbart College v. Ktzhugh, 27 N. tie Conversion ; Selwyn's N. P., Smith's Y. 133 ; Walrath v. Handy, 24 How. Man. of Com. Law (1st Am. ed.) 498, 353. et sec/., Stephen's Com., 1 Wait's Law ' Walrath v. Handy, 24 How. 353. and Prac. 825, et seq. ' Spencer v. Spencer, 3 N. Y. Leg. '» Symonds v. Atkinson, 1 Hurl. & Obs. 162, Walworth, Ch,, construing Norm. 146. the clause, " shall marry and ham a " Person v. (Jloer, 29 H')w. 432. 40 314 COMPLAINT IN PAETICULAE CASES. [CH. IV A. dee may, however, tender the amount unpaid at any time before the vendor sells the property, when, if the vendor refuse to re-deliver the property, he is liable in trover." If the seller of goods on credit deliver them to the buyer, who was guilty of no fraud in the purchase, the seller is liable for conversion if he retakes them." One who obtains money intrusted to an agent for a special purpose, with reason to believe it is the money of the principal, is liable for its conversion.' So one who wins money at gaming from the plaintiff's clerk, having reason to believe it to be the plaintiff's money.* Copyright.' — Using slips from the plaintiff's directory for the purpose of procuring information for another is not an infringe- ment.' At common law the author of a book, or other literary production, has a right of property therein, and, until publication with his assent, he may restrain its publication by injunction,' or the production of copies of an oil painting.' And the State courts have jurisdiction of such actions ;° otherwise, perhaps, when the action seeks to restrain the infringement of a copyright ob- tained by complying with the acts of congress." Corporations." — In an action by a corporation, it is not neces- sary to allege that the plaintiff is incorporated," unless in a case ' Hutc/iings v. Munger, 41 Barb. 396. Oertel v. Wood, 40 How. 13 ; Dennis v. ^ Huelet V. Reyns, 1 Abb. N. S. 37. Le Glere, 1 Orleans Term. B. 297. ^ My V. Norton, 3 Trans. App. 331, « Woolsey v. Judd, 4 Duer, 379. 3 Keyes, 897. « Woolsey v. Judd, 4 Duer, 379. * Gaussidiere v. Beers, 2 Keyes, 198. '" Dudley v. Mayhew, 3 N. Y. 9 ; see 'Upon the subject generally, see the act approved July 8, 1870, repealing Coppinger on Copyright, Cox's Trade all other acts ; acts 41 Cong, public No. Mark Cases, Abbott's U. S. Prac, Ad- 146 ; see Snow v. Judson, 38 Barb. 314; ams's Bq,, Addison on Torts, Black- Boucicault v. Fox, 5 Blatchf. C. C. 87 ; stone'sConi.,Bouv.Inst„Broom'sCom., Daly v. PalTner, & id. 356; Boudcwult Broom's Com. on Com, Law, Conkling's v. Wood, 7 Am. L. Reg. N. S. 539 ; Orowe Treat., Daniell's Chan. Prac, Bstee's v. Aiken, 4 Am. L. Rev. 454. PI. & Prac, 3 Greenl. Ev,, §§ 510-515 ; " Upon the subject generally, see Hilliard on Inj., Hilliard on Torts, Ang. & Ames on Corp., Dillon's Munic. Kent's Com., Kerr on Inj,,l Conw. Rob. Corporations, Redfield on Railways, Prac, 6 id., Selwyn's N. P., Smith's Shear. & Redfield on Negligence, Cox's Man. Com. Law, Smith's Man. of Eq., Joint-Stock Companies, Wordsworth's Stephen's Com., Story's Eq. Jur., Joint-Stock Companies, Witkrow'B Story's Eq. PI., Waterman's Eden on American Corporation cases, 0Tant Inj., Willard's Eq. Jur. on Corporations, Abbott's Digest Cor- ' Morris v. Wright, Law Rep., 5 Oh. porations. App. 279 ; explaining Kelly v. Morris, " Phmnix Bank v. Donnell, 40 N. L. R., 1 Eq. 697, and Morris v. AsKbee, Y. 410; Leighte v. Mei'eU, etc., 5 Bosw. L. B., 7 id. 34. 716. ■" Hoyt V. MeKemie, 3 Barb. Oh. 320 ; CH. IV A. j COMl^LAINT IN PAUTICULAE CASES. 315 \V'licre rights are claimed, not because plaintiff is a corporation, but pm-suant to a private act of incorporation. In such cases the title of the act should be set out in the complaint.' An action lies by a stockholder against directors of a joint-stock association or corpoi'ation who have disposed of property thereof under articles of consolidation without the consent of such stock- holder.' County court. — By the fifteenth section of the sixth chapter oi" the amended constitution, these courts have " the powers and jurisdiction they now piossess, until altered by the legislature. They shall also have original jurisdiction in all cases where the defendants reside in the county, and in which the damages claimed shall not exceed $1,000 ; and also such appellate jurisdiction as shall be provided by law, subject, however, 1o such provision as shall be made by law for the removal of causes into the supreme court. They shall also have such other original jurisdiction as shall from time to time be conferred upon them by the legislature." Previous to this amendment, the eases in which the question whether this court had original jurisdiction were numerous and intricate.' By chapter 467 of the Laws of 1870 (vol. 1, p. 993), the legislature provided that " the county courts, in addition to the powers they now possess,* shall have jurisdiction in civil actions, when the relief demanded is the recovery of a sum of money not exceeding $1,000, and in which all the defendants are residents of the county in which the action is brought, at the time of its commencement, subject to the right of the supreme court, on special motion, for good cause shown, to remove any such action into the supreme court, before trial, and also on such removal being made, to change the venue or place of trial." One of the essential facts necessaiy to confer jurisdiction is, that " all the defendants shall be residents of the county." " It has been decided that the complaint in an action in this court should allege "that the defendant is a resident of the county in which the ' Code § 163 ; Feeny v. Peoples, etc., ^ See Voorhies' Code, § 30, and notes 3 Rob. 599. Wait's Code, g 30, and notes. ' Blatchford v. Boss, 54 Bart. 43 ; < Code, § 30. Samuel v. Holiday, Woolw. C. C. R. ' The notes to § 33 of the Code may 400, and see cases cited, ante marg. p. be profitably consulted with reference 153. See Moak's note to Overend v. to a similar class of cases. Oibb, 3 Bng, Rep. 28. 316 COMPLAINT IN PARTICULAR CASES. [CH. IV A. action was conuiienced," otherwise the court has not jurisdiction, and the complaint is demurrable under section 144 of the Code.' Whether the objection would be waived by an appearance and answer, ^\'itliout objection, may be doubted.^ Justice's courts are courts of limited jurisdiction, but it has been held that if a non- resident defendant be sued by a long summons and appear and answer without objection, the court has jurisdiction.' In the latter eases, however, the court had jurisdiction of the defendcmt if it had issued the proper ^cicess. The county court, however, by the constitution, has no jurisdiction, no matter what the pro- cess, unless the defendant be a resident of the county. A well- drawn complaint in this court should certainly allege the facts showing jurisdiction. If the defendant was in fact a resident of the county, the court would, perhaps, be held to have jurifidiction on such proof being made aliunde. Covenant/ — Where a lease contained a covenant that the lessee would not, during the last year of the term, sell or remove from the demised premises any of tlie hay, straw or fodder which should arise and grow on said lands, he is liable, if during the last year he remove hay, straw or fodder which grew on the lands during the previous years.* The assignee of a lease is liable for the breach of a covenant running with the land, although the action is not commenced until he has assigned the premises." A covenant of seizin is broken the moment it is made, if at all. It is not a guaranty against a possible judgment of a court which may invalidate a proceeding through which the grantor obtained his title, as the setting aside of a sale in a mortgage foreclosure.' Although the lessee cove- ' Judge V. Hall, 5 Lans. 69. Broom's Commentaries, Broom's Com- ' See Frees v. Ford, 6 N. Y. 176; mentaries on tlie Common Law, Estee's Mahaney v. Penman, 1 Abb. 36 ; Fair- Pleading and Practice, Greenleafs ianks v. Oorlies, 3 E. D. Smith, 583, 1 Evidence, Kent's Commentaries, Con- Abb. 150 ; Harriott v. Van Gott, 5 way Rob. Pr., vols. 1, 3, 3, 4, 5, 6, Hill, 385 ; Bowne v. Miller, 6 id. 496 ; Sedg. on Damages, Selwyn'a IS". P., Burrjlmrt v. Rice, 3 Denio, 95. Smith's Manual Common Law, Ste- ^Glapp V. Graves, 36 N. Y. 418; phen's Commentaries, Taylor's Land- overruling Rohinson v. West, 11 Barb, lord and Tenant, 1 Wait's Law and 309 ; and in effect, Siii/dcr v. Goodrich, Practice, 1 Chitty's Pleadings, Ste- 3 E. D. Smith, 84 ; Willings v. W/teeler, phen's Pleadings. 38 Barb. 669, 17 How. 93. ■> Gale t. Bates, 3 Hurl. & Colt. 84. ''Upon the subject generally, see ^ Haiiei/ v. King, 3 Cromp., Mees. & Addison on C^jntracts, Chitty on Con- Rose. 18, 5 Tyrrw. 693. tracts, Parsons on Contracts, Black- ■■ Goit v. McReynolds, 3 Rob. 655. stone's Commentaries, Bouv. Inst., CH. IV A.J COMPLAINT IN PAETICITLAE CASES. 317 nant lo pay all taxes assessed on the premises during the term, if he do not, the lessor can only recover nominal damages, if he bring suit before himself, paying them,' so that if he desire to re- cover the amount of the taxes he should allege the amount thereof and that he has paid them. A covenant in a deed to pay half the expense of a party wall, when used by the party, runs with the land, and the owner thereof is liable upon such covenant, if he use the wall.'' One who accepts a deed poll with a covenant therein on his part, is liable thereon.' A covenant not to use premises as a beer shop, or other offensive purpose, will be enforced against a tenant who had no notice thereof, in fact.* So a covenant not to build beyond a 3ertain line runs with the land," and binds one with absolute title, if he have notice thereof" An action of covenant lies for an eviction by lease for years, interrupting the possession of the owner of the freehold for a certain term.' Creditors' bills and creditors' suits.' — Where one who is insolvent transfers his interest in a legacy, for an inadequate con- sideration, to a party who is aware of his insolvency, the creditors of the assignor may maintain a suit in equity to have their debts satisfied out of the interest or fund beyond the consideration actually paid or agreed to be paid, even though the transaction was not in fact fraudulent, so as to authorize the court to set it aside on that ground." In an action to reach the property of a ' Rector, etc., v. Eiggins, 4 Rob. 1, id. but see Wolfe v. Frost, 4 Sandf. Ch.73 ; 372. Babcock v. Utter, 1 Keyes, 418. ^ Burlock V. Peek, 2 Duer, 90. The « Talmadge v. East Biver, etc., 36 N. distinction between the many cases Y. 105, 2 Duer, 614, Kerr on Inj. 530, upon this subject are pointed out by 1st Eng. ed. the editor of the present edition iu a '' Pincomhe v. Budge, Hob. Bep. 3 g. note to Clarke's Oh. 392 marg. p. See The reader will find a learned note also Lester v. Barren, 40 Barb. 297 ; upon the subject of covenants, by Mr. ! V. Gumston, 98 Mass. 317. Williams, in his edition of Hobarts' ^ Spalding v. Hallenheek, 35 N. T. Rep. p. 4 b, marg. p. 207. 8 Upon the subject generally, see * Wilson V. Hart, L. R., 1 Ch. App. Moak's note to Clarke's Ch. 101, 303, 468 ; Schenck v. Campbell, 11 Abb. 293 ; 597, marg. pp., Adams's Eq., Story's Eq. Barne v. Madden, Lloyd and Gould, Jur., Story's Eq. PI., Smith's Man. of 493 ; Cole v. Sims, 23 Eng. L. & Eq. Eq., Willard's Eq. Jur., Daniell's Ch. 584. Prac, Bstee's PI. and Prac, Kerr on ^Maxwell v. East, etc., 3 Bosw. 134; Inj., index, and also p. 578; Kerr on Perkins v. Ooddington, 4 Rob. 647, 650 ; Frauds, Kerr on Receivers, 3 Van- Tulk V. Moxhay, 11 Beav. 571 ; Gole v. Santvord's Eq. Prac. , 33 Eng. L. and Eq. 588 ; Western « Bigelow v. Ayrault, 46 Barb. 148 ; V. McBerm-ott, L. K., 1 Eq. 499 ; Kerr Robinson v. Stewart, 10 N. Y. 189 ; on Inj. 496, 504, 506, 530, 1st Eng. ed. ; Chase v. Peck, 31 N. Y. 581. 318 COMPLAINT IN PAETICULAE CASES. [CH. IV A. judgment debtor, unless the complaint allege that an execution has been issued upon the judgment and returned unsatisfied, in whole or in part, it is fatally defective,' and it must allege that the execu- tion was issued to the county where the defendant then resided.' A judgment creditor may bring a suit in equity to remove a fraudulent or inequitable obstruction to the collection of his judg- ment. In such case the property, out of which the judgment creditor is seeking to satisfy his debt, mxist be subject to the judgment, if real, and to the execution, if personal property. In such cases the execution must be outstanding and not returned." Our courts have no jurisdiction over the property of foreign governments within our territorial limits.* In a suit by one creditor, on behalf of himself and others, no other creditor, before judgment, can intervene or exercise any control over it.' The complaint, in a creditor's suit against an assignee for the benefit of creditors, must allege that he has the property assigned, or some of it, or the proceeds thereof in his hands, for if he have disposed of it according to the provisions of the assignment, the action will not lie, however fraudulent the assignment.' A surviving partner cannot assign the partnership property to pay individual debts, and, if he do, the assignment will be fraud- ulent and void.' Custom or usage.' — If the contract or cause of action be explained or otherwise affected by a custom, not universal or general in its character, it should be set out in the complaint,' but if the custom be general, as the custom of merchants, it need not be pleaded." A particular or local custom must be averred," ' Beardaley, etc.,^. Foster, 36 N.T. 561. Broom's Commentaries, Broom's Com- The authorities as to the requisites of mentaries on Common Law, Chitty's a creditor's bill, and the issuing and Pleadings, Cowen's Treatise (Kings- return of an execution, will be found ley's ed.), Edwards on Bailments, Story collected by the author of the present on Bailments, Edwards' Promissory edition in Clarke's Ch. 101, 303, 597, Notes, Story on Promissory Notes, ma/rg. pp. Estee's Pleadings and Practice, Qreen- * Oldld V. Brace, 4 Paige, 309. leaf's Evidence, Hilliard's Rem. for » Heye v. BolUs, 2 Daly, 331 ; 33 How. Torts, Hilliard on Torts, Kent's Com- 366. mentaries, Kerr on Injunctions, Red- * Lemitt v. Dabney, 37 How. 864. field on Railways, Selwyn's N. P., " Mattison v. Demarest, 1 Rob. 717. Conw. Rob. Prac, Smith on Contracts, i V. Bridge, 3 Rob. 459. Smith on Real and Personal Property, ' Loescliigk v. Addison, 3 Rob. 331. Stephen's Commentaries, Wait's Law ' Upon the subject generally see and Practice, 1 Eng. R. 41, note. A-ddison on Contracts, Parsons on Con- ' 1 Broom's Com. 67, 68 ; Coke upon tracts, Chitty on Contracts, Black- Littleton, t^ 265 ; 1 Chitty's PI. 217-18. stone's Commentaries, Bouv. Inst., '» 1 Chitty's PI. 317-18. OH. IV A.J COMPLAINT IK" PAETICITLAR CASES. 319 and the facts which bring the case within the custom must be also pleaded.' If there be a local custom as to protesting notes on a different day than that prescribed by the law-merchant, it must be alleged.' It is not, however, necessary to allege that the adverse party knew of the custom, as he is presumed to contract with reference to the custom of dealers in such articles.^ A custom cannot, however, be pleaded to vary the plain and unambiguous terms of a written contract.'' In such case the aver- ment of one wiU be held bad on demurrer." Damages.' — Where an averment of special damages is neces- sary, the complaint should allege facts which show the plaintiff sustained them as the proximate result of the act complained of.' Immediate gains prevented and losses sustained, provided they are certain and such as might be naturally expected, may, under such circumstances, be averred and recovered.' The law, however, excludes uncertain and contingent profits" and gains or profits of collateral enterprises," but special profits or losses not the natural result of a bi-each cannot be recovered, unless it be averred and shown that the special circumstances, under which the contract was made, and from which the injury ' Gould's PL, ch. 3, § 16 (p. 46, 4th Inst,, Broom's Com., Broom's Com. on ed.) ; 4 Gonw. Bob. Prac, 377-79 ; 6 id. Com. Law, Broom's Maxims, 195, 799-801. Chitty on Cont., Chitty on PI., Estee's '^ 4 Conw. Rob. Prac. 438; Jackson PI. and Prac, Greenl.Ev., Kent's Com., V. Henderson, 3 Leigh (Va.) 106; 6 ParsonsonCont.,ParsousonBil]s,Red- Conw. Rob. Prac. 799-801. For pre- field on Railw., 2 Reeve's Hist. Com. cedents as to pleading customs see 3 Law (Pinlason's ed.), 57, 610, Conw. Chitty's PI. 308-310 ; see, also, vol. 3, Rob. Prac, vols. 1, 3, 3, 4, 5, Selwyn's index, title, Prescription. N. P., Shear. & Redf. on Neg., Smith's ' Whitehouse v. Moore, 13 Abb. 143 ; Man. Com. Law, Story on Sales, Story Pollock V. Stables, 13 Q. B. 64 Eng. on Cont., Wait's Law and Prac, Cow. C. L. Rep. 765. Tr. (Kingsley's ed.), Williams on Pers. * Westaott V. Thompson, 18 N. T. 867 ; Prop., marg. p. 67, and notes to Am. ed. Simmons v. Law, 8 Bosw. 314; Lom- '' Solms v. Idas, 16 Abb. 811. ba/rdo v. Oase, 30 How. 118 ; Phillips v. 8 gj.iffin v. Ooher, 16 N". T. 489, Star- Briard, 1 Hurl. & Norm. 3i, and cases bird v. Barron, 38 id. 331 ; Messmore cited in note to Johnson's ed., p. 29; v. N. T., etc., 40 id. 433; Myers v. Hone V. Mutual, etc., 1 Sandf. 137, 3 N. Burns, 85 id. 373, 103 Eng. C, L. 147, Y. 235 ; see Goodyear v. Ogden, 4 Hill, note and cases cited ; Dunlop v. Hig- 104 ; Muncey v. Dennis, 1 Hurl. & gins, 1 House Lords Cas. 881 ; Davis Norm. 216 ; Cropper v. Cook, Law Rep., v. Talcott, 14 Barb. 613, 634. 3 C. P. 194 ; Mle v. Chittenango Bank, « Griffin v. Goher, 16 N. Y. 489 ; Mil- 24 N. Y. 548. ton v. Hudson River, etc., 37 id. 214 ; ! V. Bria/rd, 1 Hurl. & Norm. Hamilton v. McPherson, 38 id. 73, 21. 76; Hoey v. Felton, 11 C. B. N. S. 142 " Upon the subject, generally, see 103 Eng. C. L. Rep. Sedgwick on Damages, Mayne on '» Masterson v. Mayn, 7 Hill, 61 ; Damages, Addison on Torts, Addison Story v. N. ¥., etc., 6 \ Y. 85. on Contracts, Benjamin on Sales, Bouv. 320 COMPLAINT IN PAETICULAE CASES. [CH. IV A. resulted, were communicated to defendant and known by him.' No averment of special damages is necessary when plaintiff seeks to recover the difi'erence between the agreed price and the actual value of the property contracted for.'' The plaintifi' cannot recover for prospective loss of services or damages from the injury complained of without averring them." If properly alleged, such damages may be recovered,* as what a party will be compelled to pay for necessary and reasonable medical services, funeral expenses, etc., though there be no aver- ment they have been in fact paid,' and so though paid by another." So the costs of an action against a principal not bound may be recovered of the agent on averment of the bringing and expense thereof,' or against a seller with warranty,' but when a party knows an agent's powers he cannot recover against him on an implied warranty of authority." In slander not actionable per se the plaintiff must aver special damages." When the special dam- ages consist in the loss of customers it has been held they must be named," but it is doubtful whether a plaintiff may not allege a general loss of business in consequence of the slander, and recover on proof thereof — ■ certainly, except in New York." A tenant may recover of his landlord, who agreed to repair, the actual expense of making proper repairs although the landlord could have got them done cheaper by employing his own mechanics." Where the purchaser pays the agreed price of goods contracted for in advance, on alleging and proving that fact, he may recover the highest market price thereof down to the trial, provided the vendee com- mence his action within a reasonable time and prosecute it with ' Bryant v. Am., etc., 1 Daly, 582. " Tobias v. Howland, 4 Wend. 537 2 Loraway v. Perkins, 10 N. Y. 371. JSallock v. Miller, 2 Barb. 630 ; Linden 3 Gilligan v. N. Y., etc., 1 E. D. Smith, v. araliam, 1 Duer, 670, 11 N. T. Leg. 453, 461. Obs. 186 ; Knickerbocker v. Ecclesine. * Gurtis V. Rochester, etc., 18 N. Y. 11 Abb. N. S. 388. 534 ; Dreio v. Sixth Av., 36 id. 49 ; "^ Townsend's Libel, etc., § 345 Williams v. Vanderbilt, 28 id. 217, Evans v. Marries, 1 Hurl. & Norm. 235. 251, 38 Eng. Law and Eq. 347 ; Hamil <■ Boeder v. Ormsby, 33 How. 270 ; ton v. Waters, 4 Up. Can. Rep. 24, 0. Crouch V. Parker, 40 iBarb. 94. S. ; McLaughlin v. Welsh, 10 Irish " 19 Ohio State Rep. N. S. 569. Law Rep. 19, a well-considered case in ' White V. Madison, 26 N. Y. 117. the Irish King's bench against a * Fake v. Smith, 7 Abb. N. S. 106, Romish priest for publishing of plain- 107; Glierry v. McBongal, L. R., 3 Priv. tiff, a miller, that he had been excom- Conncil, 34. municated, whereby his mill was de- MspiTMoaK V. yormnc^", 1 Lans. 381. serted and he was avoided by his '" Townsend's Libel and Slander, S^ neighbors. 345. " Myers v. Burns, 35 N. Y. 569, OH. IV A.] COMPLAINT IN PAKTICULAR CASES. 321 due diligence," otherwise if the seller on the day of delivery give notice of his inability to perforin and offer to return the purchase price and keep the tender good." An allegation that defendant obstructed plaintiff's way so that plaintiff and his servants were compelled to go by a longer route, and thereby the work of plain- tiff and his servants was necessarily consumed to a greater extent, and the plaintiff' was prevented from employing his servants during such excess as he otherwise would have done is a sufficient allegation of peculiar damage to the plaintiff." Demand.* — In ejectment against the purchaser of real estate, the plaintiff" need not aver a demand of the purchase price, tender of a deed" or demand of possession.' Ordinarily no demand need be made of one who receives money to the use of another, but, if necessary, a denial of the owner's rights renders one unnecessary.' The holder of a note, payable at a particular place, need not allege demand thereof thereat,' although the maker may by answer show readiness there, and by pleading the same and bringing the money into court, prevent the recovery of interest, and also recover his cost ;' otherwise as to a note pay- able on demand at sighV Where goods are delivered by mistake to one who has no right to them, and he, instead of endeavoring to correct it, lends himself to favor it, and, without authority? performs services respecting them, and claims thereby a lien, he may be regarded as a wrong-doer from the beginning, and an action will lie against him without demand." Where the time for performance of an agreement to sell personal property is not fixed, an action for non-performance cannot be maintained until ' Sedg. Dam. 360, 311 marg. pp. Kerr on Inj., Parsons on Cont.,3 Conw. ' Startup V. Owtazzi, 2 Cromp., Mees. Bob. Prac, 4 id., Selwyn's N. P., Tidd's & Rose. 165. The note at the end of Prac, Wait's Law and Prac. ; and see, this case does not state the law as particularly, 1 Austin's Jur. (3d Eng. settled in New York and several other ed.) 485-493, for the principles upon states. See Sedg. Dam. supra, 4th edi- which the propriety and necessity of tion, demand is or should be applied. ' Blagraw, v. Bristol, etc., 1 Hurl. & ^ Hotaling v. Hotaling, 47 Barb. 163. Norm. 369. « Pierce v. Tuttlc, 53 Barb. 155. *Upon the subject, generally, see 'i?bM»r(2 v. i?'ra?ice, 43 N. T. 593. Addison on Cont., Addison on Torts, * Sill v. Place, 5 Abb. N. S. 18. Bouv. Inst., 3 Burr. Prac. 4, Chitty on » Id. Cont., Ohitty's PI., Cow. Tr. (Kingsley's '" Dixon v. Nuttal, 1 Cromp., Mees. & ed.), Edw. on Bailments, Bdw. on Bills, Rose. 307 ; Holmesy. Kerrison, 3 Taunt, Estee's PI. and Prac, 3 Greenl. Ev., 333. S§ 174-176 ; Hilliard's Remedies for " Purves v. Moltz, 3 Abb. N. S. 409, Torts, Halliard on Torts, Kent's Com., 5 Rob. 653. 41 322 COMPLAINT IN PABTICULAE CASES. [CH. IV A. demand and tender.' A demand of performance and refusal thereof should he alleged by plaintiff where he seeks to maintain his action on the ground that the defendant waived a tender, or was unable to peiform.° One to whom property was rightfully delivered is not liable to an action for its value until demand and refusal to deliver the same,'' although an averment that defendant wrongfully detains the property includes a demand;* but no demand is necessary against one who obtains goods from a wrong-doer, unless he show he came into possession in good faith and for a lawful pui-pose.' A receiver of an estate, in an action against tenants thereof, for rent, by statute is required to allege notice of his appointment or demand of the rent prior to the commencement of the action." The rule is the same as to any grantee of the lessor. Where a surety agrees the priacipal shall pay on demand, a demand of him should be alleged.' Where it is the duty of a party to remit, no demand is necessary,' as in an action against a sheriff, after an execution has expired, for moneys collected on execution." An action does not lie, until demand, for moneys collected by an attorney,'" unless he denies his liability and thus waives a demand." But a demand of a legacy received by an attorney is not necessary.'" So demand is necessary of foreign factor." A sheriff cannot be sued in trover for property properly levied, but which he was not obliged to sell until demand and refusal.'* Where a party has an option to deliver one of two things a demand of one is not sufficient," and if an account is payable in any one of several articles at the option of the creditor no action will I Newton v. Wales, 3 Rob. 453. v. EiohocTc, 13 Barb. 633 ; Albany, etc., " Wheder v. Garsia, 5 Rob. 280, 40 N. v. Divendorf, 43 id. 446. Y. 584. ' Brewster v. Van Ness, 18 Johns. ^AlhnyY. WiiftMr, 2 Woodb. & Minot, 134; Dygert v. Crane, 1 Wend. 584; 871. Lillie v. Brig, 5 Hill, 395 ; Crocker on ^ Simser v. Cowan, 56 Barb. 395 (see Sheriffs (2d ed.), § 856. ante. Claim and Delivery). i" Taylor v. Brttes, 5 Cow. 376 ; People ^ Tallman v. Titrrl/'iCt Barb. 167; y. Brotherson, 36 Barb. 664; Satterlee Williams V. Tilt, 36 N. Y. 333. v. Frazer, 2 Sandf. S. C. R. 141. « Sunt V. Wulfe, 3 Daly, 398, 803 ; " Walradt v. Maynard, 3 Barb. 584. 1 R. S, 739, § 146 ; 1 Edm. St. 690. ^- Power v. Hathaway, 43 Barb. 215. ' Nelson y. Bostmch, 5 Hill, 37 ; Tal- " Lyle v. Murray, 4 Sandf. 594 ; IM- madge v. Wallis, 1 How. 100 ; but see lie v. Hoyt, 5 Hill, 395 ; Walden v. Montiigue v. Bassett, 18 Abb. 13, that Crofts. 3 Abb. 301, 4 E. D. Smith, 490. a defendant will not be required to '' Wldtmarsli v. Angle, 3 C. E. 54, OAicept such a bond. 1 Abb. PI. and Forms, 420. ''Stacy V. Graliam, 14 N. Y. 492; ''^ Lidweller y. LinneU,l%'Ba.Th.5Vi. Lyle V. Murray, 4 Sandf. 590 ; Hickock CH. IV A.J COMPLAINT IN PARTICULAR CASES, 323 lie until his election as to which and demand thereof,' and so of has option to re-purchase bonds." A demand must be made at a proper time and place." If the defendant is only bound to deliver at a particular place, an unqualified refusal to deliver at another will render him liable,'' otherwise if he answer that he is ready to deliver at the proper place." The refusal of a servant to deliver goods, intrusted to him by his master, on demand by a stranger is not sufficient evidence of a conversion,' nor will such demand and refusal be sufficient to charge the master unless the servant refused under instructions from the master." If a master, for the reason that a servant had no authority to make delivery, approve his refusal placed on that ground, he is not chargeable with a con- version.' A purchaser from one who bought upon condition that title should not pass until payment is not liable without a demand if he do not remove or change the position of the prop- erty;" otherwise if he sell it." The plaintiff's servant in his absence may demand the delivery of goods sold ;' but a party cannot ratify a demand by one not his agent, so as to render the party refusing liable for conversion, or for damages." A demand must be made sufficiently long before suit to enable a party to comply therewith." A demand of one of two joint bailees, not partners, is not sufficient ;'° otherwise if partners." But a demand of A is good as against B if he is present and remains silent.'^ One of two joint lessors may demand rent and institute proceedings on behalf of both,'" and a demand of rent of one of two joint tenants is sufficient." An action will not lie against a bank for a deposit until demand,'" unless the depositor's right thereto is denied." Neither will an action lie against an individual with whom money was deposited until demanded." A demand of the wife is not sufficient to render the husband liable.'" If a party do not object ' Smith V. Tiffany, 36 Barb. 23. " Miteliell v. Williams, 4 Hill, 13. '^ Bagwr v. King, 38 Barb. 200. " Latimer v. Wheeler, 1 Keyes, 471. 3 Mount V. Derrick, 5 Hill, 455. " Griffin v. Olarlc, 33 Barb. 46. * Dunlop V. Hunting, 2 Den. 643. " Oeisler v. Aeosta, 9 N. T. 237. * Day V. Bassett, 102 Mass. 445. '' Downes v. Phmniv,etc., 6 Hill, 297 ; ' Garter v. Kingman, 103 Mass. 517. Marsh v. Oneida, etc., 34 Barb. 398. ' Squier v. Hunt, 3 Price, 68. " Carroll v. Gone, 40 Barb. 220. * Bliss V. Cottle, 33 Barb. 322, 337, " Payne v. Slate, 39 Barb. 634, 29 N. 1 Pars, on Cont. (5tli ed.) 49 (note g). Y. 146. ' Burkwell v. O'Keef, 32 Barb. 434. '^ Limngston v. Stoessel, 3 Bosw. 19. i» Mitchell V. Williams, 4 Hill, 13 ; Je^fop V. Miller, 1 Keyes, 338. '324: COMPLAINT IN PARTICULAK CASES. [CH. IV A. at the demand, on the ground that his adversary should produce proof of his authority, he cannot afterward do so.' Demurrage. " — Consignees are only liable for an improper detention of a vessel at the place of delivery, arising from their misconduct or neglect," but a receipt in full, for freight and charges, does not include a demand for demurrage.^ Although strict demurrage can only be claimed when provision is made for it in the contract, damages, in the nature of demurrage, may be recovered by the ship owner for unwarranted detention through the fault of the consignee." Destroying note. — An action does not lie against one who defaces a note by writing " payment stopped " across the face thereof, provided the maker was then solvent and continued so for some time afterward." Divorce.' — A complaint which alleges that when defendant married plaintiif, she had a husband living ; that she represent- ed to plaintiff she had procured a divorce ; but that such divorce was void, for fraud and collusion practiced in obtaining it, does not state a good cause of action, for such a judgment is good as against the parties thereto.' If a husband angrily expels his wife from home, under suspicion of her unfaithfulness, this is not such an abandonment as justifies a limited divorce under the statute.^ In an action for a divorce on account of adultery, the plaintilf must allege that she did not discover the same within five ' lAmngston v. Stosssel, 3 Bosw. 19. held good in Sorn v. Bensusan, 9 C. ' Upon the subject, generally, see & P. 709, 38 Eng. 0. L. Rep. For libel Abbott on Shipping, Addison on Con- in Admiralty, see Benedict's Adm. (3d tracts, Benedict's Adm. (3d ed.) g 297, ed.) 588-590. pp. 588, 590 ; Chitty on Gont., Estee's * McKinley v. Am. Exch. Bank, 7 PI. and Prac, 3 Kent's Com. 303, 2 Rob. 663-4. Pars. Cont. (5th ed.) 304 ; Parsons' * Upon the subject, generally, see Merc. Law, Parsons on Admiralty, 4 Bishop on Marriage and Divorce, Bish- Conw. Rob Prac, Smith's Man. Com. op on Married Women, Black. Com., Law (1st Am. ed.) 347, 3 Steph. Com. Bouv. Inst., Broom's Com., Broom's 148, note A; Story on Gont. Com. on the Common Law, Dauiell's Ch. " Huntley v. Doios, 55 Barb. 310. Prac, Kent's Com., 3 Reeve's Hist. Eng. * .¥orse v. Peasant, 7 Bosw. 199, 2 Law (8th ed.), 1869 ; Selwyu's N. P., Keyes, 16; Gross v. Beard, 36 N. Y. Shelford's Mar. and DLv., Steph. Com., 85. See, further, as to law of demur- Taylor's Ev. (6th Eng. ed.); Willard's rage, Abbott on Shipping, title Demur- Eq. Jur., Smith's Man. Com. Law, 143 rage, and Fisher's Bug. Digest, title (1st Am. ed.) ; Wijoddeson's Lectures. Shipping, XVI ; 4 Conway's Rob. Prac. ' Kennier v. Kennier. 3 Abb. N. S. 78-80, 304-5, 863-3. For forms of 435. complaints at law, see 77"aM r. CfKcreoce, ^Barlow v. Barlow, 3 Abb. N. S 4 East, 177, 1 Abb. Forms, 390, which 359. seems to meet the objection taken and C:i. IV A.J COMPLAINT IN PARTICULAR CASES. 325 years,' but if the complaint allege the commission of the oft'ense within five years next before the commencement of the action, it is good." The name of the person with whom, the place where, and time when the adultery was committed, should be set forth in the complaint,' and it should allege that the adultery was committed without the consent, privity orprocurement of the plaintiff.* If a woman falsely represent she is pregnant by a man and induce him in consequence thereof to marry her, this is not sufficient ground for a divorce,' nor is it ground for divorce, that one who had once been married and procured a divorce, repre- sented he had never been married ;° although an action would not have lain for a refusal under such circumstances to marry the plaintiff'.' If a woman be pregnant by one person and falsely induce another to marry her, under the pretense that she is virtuous, this is such a fraud as justifies a court in annulling the marriage." A marriage, consummated without knowledge of the friends, of a girl eighteen years of age, through the impor- tunities of the husband, and upon a false statement by him as to her age and residence in the publication of the banns and register, will not be set aside." Dower.'" — A widow is entitled to dower in lands of which she with her husband executed and delivered a deed to a grantee, although such deed be subsequently declared fraudulent and void as to her husband's creditors." So if the husband convey to a third person and he re-convey to the wife.'" An equi- ' Zorkowslci v. Zorkowski, 3 Rob. 613. Dayton on Surr,, Kent's Com., Kerr on ^ Strong v. Strong, 4 Rob. 031-2. Inj., Parsons on Cont., Redf. on Law ' Parmagiori v. Parmagiori, 7 Rob. of Wills, 1 Conw. Rob. Prac, 2 id., 303. Roper on Leg., Smith's Man. Common ■• Myers v. Myers, 41 Barb. 114. Law, Smith's Man. of Eq., Smith's 5 30 Penn. St. Rep. 6 Casey, 417. Real and Pers. Prop., Steph. Com., 'CZarfevCiarfce, 11 Abb. 328. Story's Bq. Jur., Tidd's Prac., Tyler ' 1 Parsons' Cont. (5th ed.) 68 ; P«ac/t2/ on Ejectment, Van Santvoord's Bq. V. Brown, Ell., Bl. & Ell. 796, 96 Bng. Prac, Washb. Real Prop., Wat. Eden. C. L. Rep. on Inj., Willard's Eq. Jur. . Willard's * 1 Biah. Mar. and Div., § 180 et seq. ; Real Estate, Williams on Real Prop , lieynolds v. Reynolds, 3 Allen, 605. Jarm. on Wills. 'Field's Marriage, 3 House of Lords " Moloney v. Uoraii, 13 Abb. N. S. Case, 48. 389, reversing 36 How. 260, 53 Barb. '° Upon the subject, generally, see 39 ; Den v. Johnson, 3 Harr. 387. Bishop on Married Women, Scribner '^ Osterliart v. Fawning, MS., Gen. on Dower, Adams's Eq., Bishop's Mar. T., Third Dist.; Walker v. Walker, 101 & Div., Black. Com., Bouv. Inst., Bouv. Mass. 169 ; Sheldon v. Weckx, 7 N. Y. Law Diet., Broom's Com., Broom's Leg. Obs. 57 ; TFyntaft v. i'lAC, 59 Maine, Com. on Common Law, Coke upon 100 ; contra, Meyer v. Mohr, 19 Abb Lit., Daniell's Ch. Prac, Barb.Ch. Prac, 399, 1 Rob. 333. 326 COMPLAINT IN PAETICULAE CASES. [CH. IV A table suit lies for the recovery of dower,' all the heirs are proper parties although only a portion are in possession." In case of alienation the value should be computed at the time thereof," and damages for detention can only be computed from demand of the dower,' so that a demand and the time thereof should be alleged. A woman divorced from a former husband is not entitled to dower in his real estate.' If the husband convey real estate a few days before maiTiage it is an equitable fraud upon the wife, for which she may have the conveyance set aside ;° but it is good at law and a bar until set aside.' Great lapse of time, with knowl- edge of the facts, will bar such equitable right.' Ejectment.'' — In an action under the Code, to recover the possession of real estate, it is only necessary for the plaintiff to allege, in his complaint, that he is seized of some certain estate or interest in the premises described, and entitled to the possession of the same ; that the defendant is in possession thereof and un- lawfully withholds from him the possession thereof. '" The action can only be brought against a party in actual or constructive pos- session, and the complaint should aver that the defendant is in possession of the real estate in controversy."' And it must show that the plaintiff is the owner of an estate therein and entitled to the possession thereof." Constructive possession by a defendant is, however, sufficient to entitle the plaintiff to maintain the action." And so a mere claim of title, if the premises are not actually oc- ' Brown v. Brown, 4 Rob. 688, 700, ' Upon the subject, generally, see 31 How. 498; Townsend y. Townsend, Adams on Ej,, Tyler on Ej., Tidd's Pr., 3 Sandf. S. C. R. 711 ; Van Name, v. Chitty on Pl„ Addison on Torts, Aus- Va,n Name, 33 How. 349 ; Bay v. tin's Jur. (3d ed.), 389, 834, Black. Com., Leman, 2 Brown's Oh. 630, and oases Bouv. Inst., Broom's Com., Broom's cited in Bell's note. Com. on Com. Law, Broom's Leg. ^ Van Name v. Van Name, 33 Max., Estee's PI. and Pr„ Cfreenl. Ev., How. 347. Reeve's Hist, of Eng. Law, Conw. ^Marble v. Lewis, 36 How. 337; Rob. Pr., vols. 1,3,3,6; Selw. N. P., Brown v. Brown, 4 Rob. 688. Smith's Man. of Com. Law, Stephen's V. Lewis, 36 How. 337. Com., Taylor's Land, and Ten., Wash- ' 10 Ohio St. Rep. 596. burn on Real Prop., Hilliard on Real « 1 Story's Eq. Jur., §5 367-373, Coop- Estate, Williams's Real Property. er's Rep. Temp. Brougham, 139, see ^^ The People v. The 3Iai/or,29'Ba.ih. authorities cited in Perkins's note to 340 ; Walter v. Lockwood, 4 Abb. 307. Loader v. Clarke, 3 MacNaghten & " Schut/ler v. Marsh, 37 Barb. 350 ■ Gordon, 387, 48 Eng. Ch. (Banks's ed.) ; Pulen v. 'Rnjnolds, 33 How. 353. see Bush v. Woodward, West's Rep. '- Lane v. Gould, 10 Barb. 354 ; Lay 88, and West's elaborate note. man v. Whiting, 30 Barb. 559. ' Baker v. Chase, 6 Hill, 483. '^ Banyar v. Empie, 5 Hill, 48. ' Loades v. Clarke, 3 MacN. & Gord. S83, 48 Eng. Ch. (Banks's ed.) OH. IV A.J COMPLAINT IN PAKTICULAR CASES. 327 cupied/ although mere use as a public street is not sufficient pos- session by a municipal corporation to entitle the owner to main- tain ejectment against such corporation." Otherwise against a railroad or party claiming rights therein.' And, unless the wife have a legal title to real estate, she cannot be properly joined with her husband as a defendant." Formerly, when a tenant was in possession, the action could not be maintained against the land- lord." By the recent amendment of the Code, the landlord and the tenant may be joined as defendants ;' and any party claiming title or a right of possession may be made defendant.' The complaint in such case should allege that the tenant is in posses- sion of the premises, and that the landlord is his landlord, and claims title thereto or a right of possession thereof. Ejectment will lie for any strip of land, however narrow,' but the court will not compel the sheriff to execute the writ for the possession thereof where it is very narrow and is covered by part of a wall." Endorser." — An action may be maintained by the payee named in a promissory note against an indorser who indorsed it before it was delivered to the plaintiff." The complaint shovdd, how- ever, in strictness, allege that the defendant indorsed the note before its delivery to the plaintiff for a consideration moving from him, with an understanding and agreement that it should be transferred to the plaintiff for a consideration agreed upon between the plaintiff' and the maker thereof, and with an intent to ' Banyar v. Empie, 5 Hill, 48. Pars, on Cont.,Couw. Rob. Pr., vols. 1,3, ' Oowenhomn v. Gity of Brooklyn, 38 3,4,5,6; Selw.N. P., title Indorsement, Barb. 13, 14, Smith's Man. Com. Law, title Bills, ' Lazier v. N. T. Gentral R. B., 42 Steph. Com., and, also, title Indorse- Barb. 4B6, 469. ment; Tidd's Pr., title Indorsement; '' Roue V. Bell, 38 Barb. 25. Wait's Law & Pr., title Indorsement. ' Ghamplain, etc., v. Valentine, 19 " Moore v. Gmsn, 23 Barb. 584, 19 N". Barb. 484 ; Pulen v. Reynolds, 22 How. Y. 337, 17 How. 385 ; Brown v, Butler. 353. 99 Mass. 179 ; Leiois v. Jones, 7 Bosw 6 Code, S 118. 371 ; Waterhury v. Sinclair, 6 Abb. 30 ' Code, § 118. (reversed, but improperly, 7 Abb. 399 ; ' GorneSY.Minot,43Ba,Th. 60; Brady W How. 329) ; Ricfin.rds v. Warriny, V. Hennion, 8 Bosw. 529. 89 Barb. 43, 1 Keves, 580. See Sr/i.iifrr » Bowie V. Brake, 2 Abb. 161. v. Farmers', He', 8 Am. L. Reg. N. S. '"Upon the subject, generally, see Par 684, decided under a statute of Penn- sons on Bills, Story on Bills, Story on sylvania wliich forbade parol evi- Promissory Notes, Edwards on Promis- dence of the agreement. For forms of sory Notes, Bouv. Inst., title Indorse- complaints in such cases, see 1 Abbott's ment; Broom's Com. on Common Law, Forms, 236, 6 Abb. Pr. Rep. 20-1, and same title; Chitty. on Cont., Cow. Tr. at Common Law, p. 20, note from 3for- (Kingsley's edition), Estee's PI. and ris v. "FTaZ/cer, 15 Queen's Bench, 589, 09 Prac, title Indorsement ; Kent's Com., Eng. C. L. Eep. 328 COMPLAINT IN PAETICULAK CASES. [CH. IT A. give the maker credit with the plaintiff, the payee therein named ; that such note was transferred to the plaintiff for the consideration BO agreed upon, and that prior to the commencement of the action, pursuant to such understanding and agreement by the defendant, the plaintiff indorsed the said note without recourse. Allega- tions that a note payable to the plaintiff was executed by the maker, and " for a further inducement to the plaintiff to accept the same was indorsed by the defendant, and was then delivered to and indorsed by the plaintiff," are insufficient. They do not show an agreement to become holden to the plaintiff for a considera- tion to be advanced by him, nor do they show any agreement that the note should become a valid obligation without the plaintiff's indorsenicnt,' unless the indorser knew and assented to an agree- ment, that he should be liable to the payee, he is not liable to him. There must be extrinsic evidence, aside from the paper itself, that the indorsement was made with intent to give the maker credit with the payee.'' The indorser of a non-negotiable note may be charged as a maker without demand or notice of protest. The holder may write over the indorser's name the real contract as maker or guarantor.^ The complaint should, however, allege tliat the defendant wrote his name across the back of the note and transferred it to the plaintiff, who parted with a valuable consid- eration upon the credit of the note.'' Executors and administrators." An executor or adminis- trator who employs counsel is personally liable for his services ; ° so for a monument erected to the deceased, and he is not liable therefor in his representative capacity.' So, an executor may sue ^ Murphy Y. Merchant, \i "Row. 18^. tice, Estee's Pleadings, Greenleafs '' Leslie v. Payne, 39 Barb. 616, 619, Evidence, Kent's Commentaries, Kerr explaining Moore v. Cross, supra. on Injunctions, Kerr on Receivers, ' Cromwell v. Heioett, 40 N. Y. 491 ; Parsons on Contracts, 1 Conw. Rob. Richards v. Warring, 39 Barb. 43, 1 Prac, 3 id., 3 id., 4 id., 5 id., 6 id. ; Sel- Keyes, 576 , Chrisioold v. Slocum, 10 wyii's N. P., Stephen's Commentaries, Barb. 403. Story's Equity Jurisprudence, Story's ■• Richcvrds v. Warring, 39 Barb. 43. Equity Pleadings, Taylor on Evidence, " Upon the subject, generally, see Willard's Equity Jurisprudence, Wil- Willard on Executors, Williams on liams's Personal Property. Executors, Roper on Legacies, Jarman ^Bowman v. TaHman, 3 Rob. 385; on Wills, Redfield on Wills, Adams's alErmed, 41 N. Y. 619 ; Wilcox v. Smith, Equity, Addison on Contracts, Addison 36 Barb. 316. on 'Torts, Austin's Jurisprudence, ' Perrin v. Mi/rick, 41 N. Y. 815 ; Blackstone's Commentaries, Bouv. reversing 53 Barb. 76. The case of Inst. , Broom's Commentaries, Broom's Merritt v. Seaman, 6 id. 330, al- Commentariew on Common Law, Chitty though reversed upon another point on Contracts, Dauiell's Chancery Prac- (6 N. Y. 168), would seem not to be CH. IV A.J COMPLAINT IN PAETICULAB CASES. 329 for and recover money, in his own right, deposited by him as executor,' and is liable personally for the rent of real estate leased to the deceased and occupied by him in closing the testator's business." Although the plaintiff, at the commencement of his complaint, describe himself as executor, his complaint showing a personal right of action, is nevertheless good as such." An executor or administrator who carries on the testator's busi- ness after his dea.th, for the henefit of his estate, may recover as such in a complaint showing the facts ;' otherwise, if there be no allega- tion or no proof that it was carried on for the benefit of the estate.'' An executor is entitled to, and may, recover against the lessee of his testator for the breach of a covenant not to fell timber, such breach having been committed in the life-time of the testator." Where a married woman, entitled, as next of kin, to the estate of an intestate, died without asserting her claim, leaving her husband surviving, who also died without asserting his claim, held, that in order to enforce the right of the wife and reduce it to possession, the next of kin of the husband were bound to take out letters of administration upon the estate of both the husband and the wife.' The husband could have sued as such without letters upon the estate of his wife,' even upon an obligation payable to a third person for her benefit." The reason of the rule that where the husband does not reduce the choses in action of the wife to pos- session during his life, letters must be taken upon her estate, seems to be that equity regards the representative of the wife as a trustee for the representative of the husband.'" Independent of any statute while the wife was living the husband could not main- tain an action without joining the wife for a legacy to her during good law so far as it held the action ' Raymond v. Mtah, 3 Cromp., Mees. ■would lie against the executor either & Rose. 588. personally or in his representative ' Atty.-Oeii. v. Pa/rtington, 8 Hurl. capacity. See, also, Cheney v. Seals, & Colt. 193. 47 Barb. 533, 535. 8 Hansom v. Nichols, 83 N. T. 110 ; > CJieney v. Beals,4:7 Barb. 538 ; Mer- Myder v. Sulse, 34 id. 873. ritt V. Seaman, 6 N. T. 168. » ffalsted v. McGhesney, 3 Keyes, 93. '' Jermain v. Pattison, 46 Barb. 9. '" Humphreys v. Buller, West's Ch. ^ Merritt v. Seaman, 6 N. T. 168 ; Rep. 66, and cases cited in note. The Reynolds v. Welch, 1 Cromp., Mees. & report of this case in 1 Atkins, 458, is Rose. 580 ; Hargraves v. Holden, id., corrected by Mr. West from Lord note. Hardwicke'a note book, commencing V. Bendell, L. R., 6 Q. B. with the words " The credits of the 838 ; Abbott v. Parfitt, id. 846. wife in the last line of page 67 of Mr. ' BoUngTyrohe v. Kerr, L. R., 1 Exch. West's Report." 323. 42 330 COMPLAINT IN PABTICULAE CASES. [CH. IV A. marriage, for an action at law would not lie for a legacy, and he was obliged to go to equity where he would be obliged to make proper prorision for her before payment would be decreed to him. In ISTew York, by statute, in case married women die " learning descendants, them surviving, the husband of any such deceased married woman shall bo entitled to the same distributive share in ihs, personal estate of his wife to which a widow is entitled in the personal estate of her husband, by the provisions of this chapter and no more." The thirtieth section of the Revised Statutes^ giving the husband all the personal property of his deceased wife is not repealed,* by the statute of 1867, so that if a married woman die without learning desoendamts the husband takes her personal property.' An administrator appointed to administer upon the assets left unadministered on the death of the executor of a testator, may maintain an action against an executor of such former executor to recover the assets." Such an action is properly brought against the executor of the executor in his representative capacity, and the complaint need not allege that the assets ever came to the hands of the defendant." Exempt property. In an action against an officer to recover for the unlawful taking of property exempt from levy and sale on execution, it is not necessary to aver that fact in the complaint.' Articles exempt by statute continue so, notwithstanding the owner may be on his way to exchange them for articles necessary for his family, or even to sell them for cash.' A creditor cannot, by creditor's bill, reach a cause of action against a wrong-doer for the taking of exempt property," nor even a judgment recovered for such unlawful taking ;" otherwise, ' Glearke v. Aiigier, 2 Freeman, 150, ' Sliaw v. Bams, 55 Barb. 389. 1 Eq. Cas. Abr. 164 ; and see Hoven- ' Hudson v. Plets, 11 Paige, 181 ; den's note, 3 Freeman, 160, ed. 1833. Andrews v. Rowan, 28 How, 136 ; Tillot- = Laws 1867, vol. 3, p. 1939, S H ; 7 son v. Wolcott, 48 N. T. 188. Bdm. St. 169. " Andrews v. Rowan, 38 How. 126 ; 3 3 R. S. 75, 3 Edm. St. 76. Tillotson v. Wolcott, cited 3 Lans. 187, 48 < Laws 1867, vol. 3, p. 1929 § 12 ; 7 N. Y. 188. Tke case of Mallory v. Nor- Edm. St. 169. ton, 81 Barb. 424, is not cited in the ^ Barnes v. Underwood, 47 N. Y. 351. first of above cases, but we tbink the " Walton V. Walton, 1 Keyes, 15, 3 cases in 28 Howard and 2 Lansing the Abb. N. S. 428. better law, and more consonant with ' Dennis v, 8iiell, 50 Barb. 95, 34 the liberal construction given to ex How. 467. The case is again reported, emption acts. evidently by inadvertence, 54 Barb. 411. CH. IT A.] COMPLAINT IN PAETICULAU CASES. 331 however, when the proceeds of such exempt property have been actually invested in other property not exempt, for it has then lost its distinctive character.' Express company.' — An express company is bound to deliver a package sent by it to the consignee personally, at his residence. He is not bound to call at the express office for it, nor to do more than to notify the company where he may be found in the city or town, if he receive notice in any manner that the package has arrived. The company cannot terminate its liability as a common carrier, by giving him notice of its arrival, and that he must call for and obtain it.' ISTor does a stipulation in a receipt given by the company which iirst received the package inure to the benefit of a connecting company.' But if the company deliver a package of money, addressed to the cashier of a bank, to an assistant receiv- ing teller, who is then acting as receiving teller, it is not liable although the package never came to the possession of the cashier or the bank." An express company which agrees to take a promis- sory note to collect, and if not paid on presentation, to protest it, but neglects to have it properly protested, is liable for the amount of the note if there be no waiver of protest by the indorser, and the maker is insolvent.' False imprisonment." — A complaint which alleges that the defendants maliciously, and with intent to injure the plaintiff, illegally, and without warrant, arrested and by force compelled her to go to a police station, and there restrained her of her liberty states a cause of action for false imprisonment, and not for malicious prosecution, and the question of probable cause does not arise.' An arrest by a private individual is justified only when a felony has in fact been committed, and there was reasonable ground to suspect the person arrested, although in truth innocent of its commission;' but a constable is justified in making an ' Wygant v. Smith, 3 Lans. 185. Common Law, Cliitty's PI., Estee's PI., ' Upon the subject, generally, see Hilliard on Torts, Hilliard's Rem. on Carriers. Torts, Kent's Com., 2 Conw. Eob. Pp., ^WWbeoh V. Holland, 55 Barb. 443. Sedgw. on Dam., Selwyn's N. P., Steph. * Hotchkiss V. Artizcm's Bank, 42 Com., Taylor on Ev., Tidd's Prac. Barb. 517, 2 Keves, 564. ' Burns v. Bh-len, 1 Rob. 555, 26 How. ' Goghlan v. Dinsmore, 35 How. 416 ; 273, 40 N. Y. 463 ; Hawley v. Butler, 4 Trans. App. 386. 54 Barb. 490. * Upon the subject, generally, see ^ Burns v. ErTien, supra, 54 Barb. Addison on Torts, Bl. Com., Bouv. 490 ; Lister v. Ferryman, L. R., 4 Inst., Broom's Com., Broom's Com. on House Lords, 521, reversing, L. R., 3 332 COMPLAINT IN PAEXICULAE OASES. [OH. IV A. arrest without warrant though no felony has been committed, it' he has reasonable ground to suspect that one has' been, and acts in good faith and without evil design.' A constable who was immediately sent for, by one who saw an offense, and followed the accused a mile before making the arrest, was held to have immediately arrested him.' False imprisonment will lie against a complainant and an officer in a criminal prosecu- tion, who combine and extort money from a party accused although he be in the custody of the officer under a valid warrant, issued upon a charge of felony.^ A justice of the peice has no power to commit a party arrested from Saturday night until Monday morning unless he is first brought before the justice.'' K a party be arrested on a telegram by an officer he must be taken, without unnecessary delay, before an officer authorized to examine into the case, and unless within a reasonable time proof be given to show the suspicion to be well founded he should be discharged.' An officer may arrest a party guilty of breach of the peace or misdemeanor in his presence," and may lawfully detain gambling instruments or other similar property taken at the arrest until after the trial.' A private individual cannot justity an arrest without war- rant for a misdemeanor, though committed in his presence. In such cases, unless the defendant plead that he was an officer, his answer is demurrable,' nor can a constable, unless the offense was committed in his presence, nor has he a right to arrest, without a warrant, for mere violation of a city ordinance, not a felony or misdemeanor, though committed in his presence.' A party who merely points out an alleged offender, or states what he knows about the offense, without directing or participating in the arrest, is not liable.'" Excheq. 197, 3 'Wend, 350, 1 N. T, Leg. Hawley v. Butler, 48 Barb. 101 ; but Obs. 385, S. C, 4 Man. & Grang. 989, 43 see S. C, 54 id. 490. Eng. C. L. Rep., 7 N. Y. Leg. Obs. 89. '^ Willis v. Warren, 17 How. 100. ^ Burns v. Erben, supra, 54 Barb. See 1 Burn's Justice (30tbed.), 286, for 490 ; Lester v. Perryman, L. R. 4 House a collection of the cases as to when and Lords, 531, reversing L. R., 3 Exch. whomayarrest a party guilty of or sus- 197, 5 Cush. 281, y 'Wend. 350 ; Gordon pected of the commission of a crime. V. ElpUck, 8 N. Y. Leg. Obs. 304, 4 ' Willis v. Warren, 17 How. 100. Exch. 447, 29 How. 473. « Phillipsv. Trull, 11 Johns. 486. ^ Sanway v. Boultbee, 1 Moody & ' Schneider v. McLane, 36 Barb. 495, Bob. 15. 3 Trans. App. 366, 3 Keyes, 568. 3 ffolley V. Mix, 3 'Wend. 351 . '" Gordon v. Elphick, 8 N. Y. Leg. Obs. *Pratt V. Hill, 16 Barb 304. 204, 4 Exch. 445, disapproving Elewster " Matter of Henry, 29 How. 185 ; v. Royle, 1 Gamp. 187 ; Bums v. Erben, 1 Rob. 555, 36 How. 273, 40 N. Y. 468. CH. IV A.J COMPLAINT IN PARTICULAR CASES. 333 Where a teacher improperly, and under a claim for money due for schooling, refused tti allow a mother to take her son liome with her, and kept him dnring a part of a vacation, though fre- quently demanded by the mother, but there was no proof the son Vnew of the demand, or that any restraint had been put upon him, helA^ that an action by the child for false imprisonment would not lie.' If a privileged person be arrested, an action for false imprisonment does not lie, for he is required to plead his privilege.'' Where plaintiff entered defendant's shop to purchase an article, when a dispute arose between plaintiff and defendant's shopman, who requested plaintiif to go out, but he refusing, the shopman endeavored to turn him out, and an affray occurred between them ; defendant, coining in during the affray, requested plaintiff to go out quietly, but he refusing to do so, defendant gave him in charge of a policeman, who took him to a station house; held, defendant was justified, under the circumstances, in giving the plaintiff into the custody of the policeman for the pur- pose of preventing a renewal of the affray.^ But where a police sergeant went to the house of a private to see whether he was discharging his duty, when an altercation took place and the pri- vate followed the sergeant and struck him. The sergeant went for assistance and returned with two policemen. The private being from home, two hours after they returned and told him to go with them. He refused, and, on the sergeant endeavoring to take hold of him, the private struck him upon the head with a clock weight, inflicting a somewhat serious injury. Held, the attempted arrest was illegal. That, although the sergeant might arrest if there was danger of an afiray being renewed, there could not be said to have been any such danger in the case when the arrest was attempted.' A constable, while standing outside the defendant's house, saw him take up a shovel and hold it in a threatening attitude over his wife's head, and heard him at the same time say : " If it was not for the policeman outside I would split your head open ; " about twenty minutes afterward defendant left his house, ' Semng' V. i)02/?e,lCromp.,Meea. & ^ Twiofhy v. Simpson, 1 Cromp., Eosc. 377, 4 Tyrwh. 801. Mees. & Rose. 756, 5 Tyrwh. 244. ' Noel v. Isaac, 1 Cromp., Mees. & * Beg. v. Walker, Dearsly's Grown Ilosc. 753. Cases, 358. 334 COMPLAINT IN PAETICULAE CASES. [CH. IV A. saying he would leave his wife altogether, and was taken into custody by the constable, who had no warrant, when he had pro- ceeded a short distance in the direction of his father's residence. Held, the constable was not bound to arrest the defendant the moment the offense was committed, but it was sufficient if he did so " recently after the right to do so arises," and that it could not be said that, because the defendant was coming away from the house, the constable was hound to come to the conclusion the danger was over.' Forged check or paper .° — Where the name of a payee in a pension draft was forged to an indorsement and transferred to a bank which obtained the money thereon, /ieZi^, that it was liable to an action for money had and received by the payee,' or trover could have been maintained against the bank ;* the drawee of a draft is bound to know the handwriting of the drawer; if the amovmt has been altered, the rule still holds the drawee lialtle, and he cannot recover the balance of one to whom he paid the money.' So a merchant who sends a check, payable to A B or order, to the jjost-office, by a clerk, is not guilty of negligence which precludes his recovery of a deposit, if the clerk open the letter, change the word " order " to " bearer," and draw the money.' But if one deliver a check to a servant for collection, and carelessly leave blanks which the servant wrongfully fills up for a larger amount, bo that the banker has no means of detecting the forgery, the drawer must sustain the loss. His negligence, in leaving the blanks, contributed to the injury, and the servant was empowered to obtain the money from the bank. The principal will be held responsible for the manner in which he does it.' So if one sign ' Beg. V. lAgM, Dearsly & Bell's Jour. 305 ; but see Othy v. Conant, 5 Crown Cases, .332, 3-37-9. Lans. 310 ; Dodge v. National, etc., 20 * Upon the subject, generally, see Ohio St. 234, 5 Am, Rep, 648; Schaffer Chitty on Bills, Edwards on Bills, Par- v. McIUe, 19 Ohio St. r,-M. sons on Bills, Story on Bills, Addison '^TaOjotv.B'n.kof RorheaterjWiXW.i^S. on Torts, Bl, Com., Broom's Com. on ' Nntinjiiil J'lirk Baal: \. NintliNa- Common Law, Cowen's Tr, (Kingslev's tional Bank, 46 N, Y. 77, reversing 55 ed.), Daniell's Ch. Prac, Kerr's Frauds Barb. 87, 7 Abb. N, S, 12U, and Na- and Mistakes, and see, also, pp. 49-1.39, tional Park Bankw f'unrtli National 1st Am. ed. ; 2 Conw. Rob. Pr., id., 6 id., Bam,k, 7 Abb, N, S, 138. Selw. N, P., Smith's Mjui. C. L., and p. » Belhnap v. Natlumd, etc., 100 Mass, 227, Ist Am. ed. ; Smith's ]\Ian. Kq., 376, Steph. Com., 1 Wait's Law and I'lac. ■" >' The vendor, however, cannot, without offer to perform and notice to the vendee of his intention to re-eell in case of his failure to do so, re-sell even after failure by the vendee. If he re-sell without such notice, he rescinds the contract, and is liable to repay the amount advanced, although not liable for damages," but if the vendee, on request, refuse to jperform the contract, he cannot recover back the amount advanced, although the vendor afterward re-sell for more than the contract price," for Ae is the party who first rescinds. On the sale of a specified quantity of grain out of a larger quantity, the title thereto passes, so that the ' BovXUr V. Arnott, 1 Cromp. & Mees. ^ Levyia v. Qrdder, 49 Barb. 606 333. Pollen v. LeRo}/, 30 N. T. 557-8 2 3 N. T. 360, 34 id. 595, 21 Barb. Sogart v. O" Began, 1 E. B. Smith, 590 199, 5 Denio, 379, 8 N. T. 396, 35 id. Crooks v. Moore, 1 Saudf. 397 ; Mess- 630, 9 Barb. 511, 35 N. T. 378, 31 more v. Shot, eta., 40 N. T. 433. How. 10. 8 Crooks v. Moore, 1 Sandf . 397. ' Pollen V. ZePoij, 30 N. T. 556. ' Messmore v. Shot, etc., 40 N. T. * 3 Bl. Com. 448, 4 Barn. & Cress. 433. 481, 3 Pars. Cont. (5th ed.) 356-7 ; Story " Fancher v. G-oodman, 39 Barb. 315 ; on Sales, § 336. McEaahron v. Handles, 84 id. 301 ; Zft- ' McMachron v. Bandies, 34 Barb, ter v. Stewart, 30 id. 80 ; Main v. King, 305. 8 id. 535 ; Story on Sales, § 336. ^ Messmore v. Wew York, etc., 40 N. " Monroe v. Beynolds, 47 Barb. 574, T. 433 ; Lems v. Grader, 49 Barb. 606 ; 579, 580 ; Simon v. Kalishe, 6 Abb. N. Pollen Y. LeBoy, 30 N. Y. 556 ; Dustam S. 335. V. McAtidrew, 10 Bosw. 135. CH. IV A.] COMPLAINT IN PAKTICULAR OASES. 343 seller may maintain an action for goods sold,' provided it is found that the parties intended that the property should be at the buyer's risk, or that the title should pass." Where one sells a cargo of wheat described in the bought and sold note as on board a certain ship, as per bill of lading, held, that the buyer was not necessarily entitled to rescind on its turning out that all the wheat was not shipped before the bill of lading was given.' Guaranty/ — Where a tenant leased premises at a yearly rent of $1,100, payable quarterly, and the defendant covenanted that, in case of default by the lessee in the payment of the rent, he would " pay $900, or any arrears thereof that remain due, and also all damages " that might " arise in consequence of the non- performance of the lessee's covenants or either of them," and the tenant paid three quarters' rent, leaving the fourth not paid, held, the surety was liable for the whole $275.' Although the language of a guaranty is equivocal so that it does not show whether it was intended to apply to future debts or only to debts already due, if it be apparent from the transactions between the parties and the entire instrument that it was intended to cover future dealings the guarantor will be liable thereon for such.' On a guaranty of payment for " chamber suits " the guarantor is not liable for parts of chamber suits.' A guaranty will be held to contemplate a single sale unless it be evidently intended to operate as a continuing liability,' but a guaranty may be held continuing if from the transaction and its language such be the evident intention of the parties.' Upon a guaranty of " collection " of an obligation the guarantor must exhaust his ■ Kimbcrly v. Patehin, 19 N. T. 330 ; Pleadings, Cowen's Tr. (Kingsley's ed.), Russell V. Oa/rrington, 43 id. 118, 133 ; Bstee's Pleadings, Kent's Commen- Woodley v. Coventry, 3 Hurl. & Colt, taries, Kerr on Frauds, Parsons on 164 ; Turley v. Bates, id. 300. Contracts, 1 Conw. Rob. Prac, 2 id., 8 i V. Wade, 47 Barb. 53, 68. id., 4 id., 5 id. ; Selwyn's N. P., Smith's ' Gattorno v. Adams, 13 C. B. N. S. Manual of Common Law, Smitb on 560, 104 Bng. C. L. Eep. Contracts, Stephen's Commentaries, ■•Upon the subject, generally, see Story's Equity Jurisprudence, Taylor's Burge on Suretyship, Pitman on Prin- Evidence. cipal and Surety, Theobald's Principal ^ Lanier v. Wyman, 5 Rob. 147. and Surety, Throop on Statute of ^ Brown v. Bachelor, 1 Hurl. & Frauds, Browne on Statute of Frauds, Norm. 355 ; Wah'atli v. TJwmpson, 4 Adams's Equity, Addison on Contracts, Hill, 301. Bouv. Inst., Broom's Commentaries, ■■ Hayden v. Cram, 1 Lans. 181. Broom's Commentaries on Common * Coles v. Park, L. R., 5 C. P. 65, 70. Law, Chitty on Contracts, Chitty's 344 COMPLAINT IN PAliTICULAE CASES. [CH. IV A. remedy within a reasonable time and with due diligence against the principal debtor.' Though the principal debtor be insolvent he must be prosecuted within a reasonable time or the guarantor is discharged,'' even though he reside out of the State, if he so resided when the guarantee was given,' otherwise if he abscond after the guaranty is made/ Unreasonable delay discharges the guarantor.' A guaranty of " payment and collection " is one of collection merely, and the creditor must exhaust his remedy," so on a guaranty of collection of a bond and mortgage ;' otherwise as to a guaranty of any " deficiency " on a foreclosure of a mortgage.' A guaranty that the maker of a note is good is one of collection ;' otherwise that a note was good and would be paid at maturity." A waiver of the foreclosure of a mortgage does not waive a prosecution upon the bond." The omission to file a transcript of a justice's judgment vnll not discharge the guarantor unless the principal debtor had real estate.'^ The prosecution of the principal debtor must be in good faith, and with reasonable care amd shilV A guaranty for all moneys advanced within one year may be countermanded." A guaranty for all goods furnished the principal debtor " until I give you notice to the contrary " is not a bare authority, but a contract, and the executor of the guarantor is liable for goods supplied after his death." Highways." — In order to maintain an action for obstructing a highway, the plaintiif must suffer some substantial damage ' BiiA-t V. Horner, 5 Barb. 501 ; New- ' Oook v. Natham., 16 Barb. 343 ; eU V. Fowler, 23 id. 638 ; Oraig v. Torry v. RaiUey, 37 id. 195. Pa/rUs, 40 N. T. 181. The case of i" OaroieU v. McMel, 31 N. T. 387, Oady V. Sheldon, 38 Barb. 103, was 840. expressly overruled in Baker v. Plat- " Newell v. Fowler, 23 Barb. 638. ner, in the 6th Dist., affirmed in Court "^ Baek'os y. SMpherd, 11 Wend. 639, of Appeals, March, 1870. It was also 635. disapproTsd in Graig v. ParMs, 40 N. '^ Sawyer v. Haskell, 18 How. Prae. T. 181. 382. 2 Oraig v. Pa/rUs, 40 N. T. 181 ; '* Offord v. Davis, 13 C. B. N. S. HoA-t r. Hudson, 6 Duer, 294 ; Gallagher 748, 104 Eng. C. L. Rep. V. White, 81 Barb. 93. " Bradbmy v. Morgan, 1 Hurl. & * Burt V. Horner, 5 Barb. 501 ; Spies Colt. 349. V. Gilmore, 1 N. Y. 334. '* Upon the subject, generally, see ^ Oook V. Nathan, 16 Barb. 843. Angell on Highways, Thompson on ' Burt V. Horner, 5 Barb. 501. Highways, Washburne on Easements, * Baxter v. Smack, 17 How. 183. Washburne on Real Estate, Addison ' Liu,e V. Hinds, Clarke's Chy. 453, on Contracts, title Ways ; Addison on ma/rg. p. and Moak's note ; Newell v. Torts, Blackstone's Commentaries, Fowler, 33 Barb. 628. Bouv. Inst., Broom's Commentaries, * Goldsmith v. Brown, 35 Barb. 484. title Way, Broom's Commentaries, OH. IV A.J COMPLAINT IK PARTICULAR OASES. 345 peculiar to himself, beyond that suffered by the rest of the public who use it. Where the plaintiff proved no damage peculiar to himself beyond being delayed on several occasions in passing along it, and being obliged, in common with every one else who attempted to use it, either to pursue his journey by a less direct road or to remove the obstruction, held, he could not maintain the action.' Nor does loss of trade, occasioned by a temporary obstruction of a highway during the building of a railway, ren- dering access to plaintiff's hotel more difficult, entitle him to recover.^ One of the late cases in New York seems to hold that a party who is injured by the obstruction of a highway may have relief in equity, although an action at law could not be sustained." A temporary occupation of part of a street or highway by persons engaged in building, or in receiving or delivering goods from stores or warehouses or the like, is allowed, from the neces- sity of the case,'' but a systematic and continued encroachment of a street, though for the purpose of carrying on a lawful business, is not.' When a city is compelled to pay damages for an injury occurring from an unsafe condition of its streets, through the negli- on Common Law, title Way, Cook's stantially to the same efEect. Pierce Manual of Highways, Cowen's Tr. v. Dart, 7 Cow. 609 ; Dougherty v (Kingsley's ed.), Estee's Pleadings, Bunting, 1 Sandf. S. C. R. 1 ; Port Daniell's Chancery Practice, title Way; Plain, etc., v. Smith, 30 N. Y. 44 ; Fry on Specific Performance, same Myers v. MaXcolm, 6 Hill, 332 ; Mc- title ; Greenleaf 's evidence, title Way ; Keon v. Lee, 4 Bob. 469 ; Lansing v. Hilliard's Remedies for Torts, title Smith, 8 Cow. 146. The opinion of the Ways ; Hilliard on Torts, Kent's Com- chancellor, in this case, in the court mentaries and title Way, Kerr on In- of errors, 4 Wend. 9, that every one junctions, same titles ; Parsons on who receives actual damage from an Contracts, title Real Property ; 2 Conw. obstruction may maintain an action, Rob. Prao. and title Way, 4 id., same although there may be many others in titles, 6 id., same titles; Selwyn's N. the same condition, is hardly supported P., Smith's Manual of Common Law, by the authorities, although there is title Way ; Stephen's Commentaries, much good sense in it, and it may Taylor's Evidence and title Way, ultimately be held to be good law in Tidd's Practice, title Way ; Williams that State. McKeon v. Lee, 4 Rob. 469. on Real Property, and same title ; See Thompson on Highways, p. 256-57, Chitty's Pleadings and title Way. and Lansing v. Wiswall, 5 Denio, 213 ; ■ Winterbottom v. Lord Derby, Law. affirmed, 5 How. 77. Rep., 2 Bxch. 316. * People v. Gunningham, 1 Denio, •' Bieket v. Met. Railway, L. R., 2 H. 524, 33 Peun. St. 689 ; Chicago v. Bob- L. 175, 187, 5 Best & Smith, 156. The Uns, 2 Black. 418, 423-4, distinguish- two last English cases consider, at ing, SiUiard v. Bichardso7i,Z Qxa,y,Z4S, great length, the question as to what and disapproving, Seammon v. Uhi- constitutes special damages, and should cago, 35 111. 424. be carefully read before bringing an * People v. Cunningham, 1 Denio action of this character. 534. • The cases in New Tork are sub- 44 346 COMPLAINT IN PARTICULAR CASES. [CII. [V A. gence of an individual, it may recover such damages from him.' One who digs a pit upon his ov^n land, substantially adjoining a public highv^ay, so that those using it with ordinary caution may fall into it, is liable to one, who, by such use of it, sustains injury thereby,'' otherwise, if it be not substantially adjoining the public highway ;" or if dug in rear of his building, and one who attends a fire therein accidently fall into the pit and be injured.* Husband and wife.' — An action lies against a married woman carrying on business in her own name for the negligence of her servant." When a married woman, in the presence of her hus- band, and \)j his direction, maliciously institutes a prosecution against another, she is not personally liable therefor,' otherwise, if the husband be not present, though she act by his direction, or if he be present, but she do not act under his direction.' In such case, however, the hiisband and wife must be sued jointly, and judgment must go against both, for the husband is hable for the wife's torts," and both, or either, may be taken in execution,'" although the wife could not be held to bail on mesne process."' In IStew York, by statute, the husband is not liable for the conver- sion of property by the wife, if she claim it as her separate prop- erty.'" ' GMoago v. Bobbins, 2 Black. 419. id., 5 id., 6 id., Eoper on Leg., Sel- = Bm-nes v. Wend, 9 C. B. 393, 67 Eng. wyn's N. P., Shear, and Redf. on Neg., C. L. R. ; Wright v. Saunders, 36 How. Smit)i on Cont., Smith's Man. Com. 186, not so well reported ; 3 Keyes, 333. Law, Smith's Man. of Eq., Smith's * Hardcastle v. South, etc., 4 Hurl. & Real and Pers. Prop., Steph.'s Com., Norm. 67. Story's Agency, Story's Eq. Jur., ■* Kohn V. Lovett, 44 Ga, 351. Story's Eq. PI., Story on Sales, Tay- * Upon the subject, generally, see lor's Ev., Tidd's Prac, Townsend on post, title Married Woman, and the fol- Slander, Van Santr. Bq. Prac, Wait's lowing works, titles Husband and Law and Prac, Washb. on Real Prop., Wife, and Married Woman ; Roper on Williard's Eq. Jur., Hilliard on Real Husband and Wife, Bright's Husband Est., Williams on Ex'rs, Williams's and Wife, Bishop's Marriage and Di- Pers. Prop., Williams on Real Prop, vorce, Bishop on Married Women, Ad- ' Oillies v. Lent, 2 Abb. N. S. 455. dison on Contracts, Addison on Torts, ■■ Gassiii v. Delany, 38 N. Y. 178-9, 6 Barbour's Ch. Prac, Benjamin on Sales, Abb. N. S. 1. Bl. Com., Bouv. Inst., Broom's Com., * Gasdn v. Delany, 1 Daly, 234, 38 Broom's Com on Common Law, Cow- N.T.179; WagenerY. Bell,X^'Sa.T\i.Z'i\. en's Tr. (Kingsley's ed.), Daniell's ' Drury v. Dennis, Telr. 106, and Chy. Prac, Chitty on Cont., Chitty's Metcalfe's note, 106 a.; -IfarsA v. PoKcr, PI. , Bstee's PI. and Prac, Fry's Specif. 30 Barb. 506-7. Perf., Greenl. Ev., Hilliard on Inj„ '» Id. ; Solomon v. Waas, 3 Hilt. 179 ; Hilliard on Torts, Hilliard's Rem. for Manigfinv.Tinen,5^'Ba,rb.5Sl,ZT3.o-w. Torts, Kent's Com., Kerr on Inj., Kerr 130 ; Marsh v. Potter, 30 Barb. 506-7. on Frauds, Parsons on Cont., Parsons " Schaus v. Putscher, 25 How. 463, on Part., Bedf. on Wills, Reeve's Dom. Metcalfe's note to Telv. 106 a. Kel., 1 Couw. Rob. Prac, 2 id., 3 id., 4 '* Peak v. Lemons, 1 Lans. 395. OH. IV A.J COMPLAINT IN PABTICULAE CASES. 347 If the wife marry, pending a snit against her, the husband is not a necessary party ; judgment may go against her only when tlie execution must conform to it,' although the husband, in such case, may be made a party defendant." An action does not lie by the husband against the father of his wife for merely harboring her or for advising her to leave her husband, if he do so honestly upon information, from the wife, that circumstances exist which justify her in abandoning him, although the informa- tion subsequently prove to be unfounded.' ISTor is a stranger liable for honestly acting upon such advice." If one, by means of false insinuations against the husband, influence the wife to leave her husband, he is liable,'* but he must act from improper or unjustifiable motives." A tradesman who sells goods to one held out by an assumed husband as a wife, may recover, although she be not in fact such.' And so he may recover for necessaries furnished the wife, although a suit for divorce be pending, unless alimony has been allowed." If the wife leave her husband with- out justifiable cause, he is not liable for even necessaries fui-nislied her ' unless she offer to return and he refuse to receive her." He is liable if the wife leave him because of his violence and cruelty and from reasonable apprehension for her personal safety, pro- vided he be the offending party." So he is liable in equity, though not at law, for money advanced to the wife for and applied to her support, if he have deserted her." In an action against the husband for money advanced to the wife, the complaint must aver that the money was loaned or advanced to the husband or to the wife, or for her benefit at his request, or with his consent, or that he subsequently acquiesced. _' V. WTiite, Croke's Jac. 323 ; Bolton v. Prentice, 3 Strange, 1314, and Ooopeir V. HuncMn, 4 East. 531 ; Doe v. see Mr. Nolan's note to 3d ed. Butcher, 3 Mauls & Selw. 557 ; Haines ' Blowers v. Sturtcoant, 4 Denio, 46 ; V. Corliss, 4 Mass. 660. Manhy v, Scott, Orl. Bridg. 229 ; Hinton ^ Hcdnes v. Corliss, 4 Mass. 660. v. Hudson, 1 Freem. 349, and Smirke's " Bennett v. Smith, 31 Barb. 443 ; note to ed , of 1826. Oa/mphell v. Garter, 6 Abb. N. S. 151. " Btoivers v. Sturtevant, iBenio, 46 ; * Barnes v. Alle7i, 1 Keyes, 393. {Maniy v. Scott, Orl. Bridg. 339, so far ^ Hermance v. James, il Barb. 130, as it holds otherwise, is not sound law); 83 How. 143. Moore v. Moore, Wei3t. 35-6, and cases ' Schuneman v. Palmer, 4 Barb. 335 ; cited in note ; S. C, 1 Atk. 373. Hutchinson v. Peek, 5 Johns. 196. " Reynolds v. Sweetser. 15 Gray, 78 ; ' Story on Cont., § 101. Blowers v. Sturtevant, 4 Denio, 46. 8 Johnstone v. Allen, 6 Abb. N. S. '» Bea/re v. Soulten, L. R., 9 Eq. 151 ; 306 ; Eames v. Sweetser, 101 Mass. 78 ; overruling, May v. Skey, 16 Sim. 588. 348 COMPLAINT IN PAETICULAE CASES. [CH. IV A. or that she was the agent of the husband in procuring the advance, or should allege such facts as show that an implied agency from the husband to the wife arise therefrom.' The husband is liable for the costs of a suit against him by the wife, rendered necessary by his misconduct.' The husband is liable for the expenses of burying the wife in a suitable manner, although she left her hus- band without cause and had lived separate from him for years, and notwithstanding she be buried without communication with the husband. ° Plaintiff repaired the house of a lunatic husband, in which his family resided, he being in an asylum, pursuant to the orders of his wife. The repairs were necessary for the house, but after paying for defendant's support in the asylum, the wife received the whole of his income and had also an allowance from friends of the defendant. What she received from both sources was sufficient for all purposes, including the repairs. Seld, the husband was not liable, for the authority of a wife to pledge her husband's credit was no greater in the case of a lunatic than ia the ordinary case of husband and wife.* A druggist is liable to the husband for secretly, day by day, selling the wife large quantities of laudanum to be used by her as a beverage and so used, to defendant's knowledge, without the knowledge or consent of the husband, the defendant well knowing that the same was injuring and impairing her health, and concealing the fact of such sales from the husband ; the wife from the use of such laudanum becoming sick and emaciated, her mind affected so that she was unable to perform her duties as such wife, and her affec- tions becoming alienated from her husband so that he lost her society, and was compelled to expend money in medical and other attendance upon her.' After judgment against or in favor of husband and wife it cannot be assigned, as error in fact, that prior ' Schullhofer v. MeUger, 7 Rob. 576. den, 50 N. H. 87, as to divorces, where ^ Sice V. Shepherd, 13 C. B. N. S. tlie courts liave power to settle the 333, 104 Eng. C. L. ; Brown v. Ackroyd, liability of the husband by the judg- 5 Ell. & Bl. 819, 85 Eng. 0. L. ; HaioUy ment. 6 MoNamara v. Wallace, MS., Gen. " Bradshaw v. Beard, 12 C. B. N. S. T., 3d Department, Nov. 1873 ; Wil- 344, 104 Eng. C. L. ; Anibrose v. Kerri- hams V. Fowler, McL. & Younge, 369 ; son, 10 C. B. 776, 70 Eng. C. L. Warner v. Heiden, 11 Am. Law Reg. * Ricliardson v. Dubois, L„R., 5 Q. N. S. 379, 39 N. H. 138 ; but see Phillips B. 61. V. Simmons, 30 How. 843 ; Hay v. Ad- ' Hoard v. Peck, 56 Barb. 202. OH. IV A.] COMPLAINT IN PARTIOULAE CASES. 349 lo tlie alleged marriage to tlie husband she was married to another person who is still living.' Illegal contract.^ — If the complaint show, upon its face, that the contract sued upon is illegal, it will be demurrable ; but if it may or may not be illegal, according to the intention of the parties as shown by extrinsic circumstances, it will be presumed legal ;' and it is not necessary for the plaintiii' to allege it is not illegal.' A contract to pay the amount due on a certain mortgage of real estate, then assigned by the defendant to the plaintiff as liquidated damages, in case an order of sale in an action then pending in which the covenantor was a defendant, for the foreclosure of a prior mortgage on the same and other premises, should not require the sale of that part of such pretoises not covered by such assigned mortgage, and prior application of the proceeds of such sale in satisfaction of the mortgage then being foreclosed, before any sale of the residue, the order of sale in such pending action not con- taining any provision or direction for selling any part of such mortgaged premises before the other, is legal and not contrary to public policy.' An agreement by diiferent sets of bidders for a public contract, by which one agrees to pay a certain sum to another if he will withdraw his bid and assist the promisor in obtaining the contract, is illegal." So a note given to a public officer, for violating his duty as such.' An agreement, by one in- terested in the probate of a will, to pay those threatening to oppose its probate, a certain sum if they will not, is valid ;° provided the complaint allege a consideration by showing that there was some ground for contesting the probate of the will, or doubt as to its validity.' And it has been held, although we doubt the soundness ' Met. Rail-way v. Wilson, L. R., 6 C. on Cont., Smith's Man. Com. Law, P. 376. Steph. Com., Story on Agency, Story's " Upon the subject, generally, see Eq. Jur., Story on Sales, Taylor's Ev., Adams's Eq., Addison on Cont., Benj. Wait's Law and Pr., Williams on Pers. on Sales, Bl. Com., Bouv. Inst., Broom's Prop. Com., Broom's Com. on Com. Law, ' Brown v. Brown, 34 Barb. 538. Chitty on Cont,, Cowen's Tr. (Kings- * Washburn y. Fran/din, 28 Ba.vh. 27. ley's ed.), Daniell's Oh. Pr., Edw. on ^ Oowdry v. Carpenter, 41 N. Y. 619, Bailments, Edw. on Prom. Notes, Fry reversing S. C., 1 Rob. 429. on Specific Perf., Hilliard on Inj., <■ Sharp v. Wright, 33 Barb. 236. Kent's Com., Kerr on Inj., and pages ' Devlin v. Brady, 36 N. T. 534; At- 50, 519, Am. ed. ; Kerr on Frauds, and ahison v. Ballon, 43 id. 147. pages 220, 374, 375, 296, Aui. ed. ; Pars. » Palmer v. North, 35 Barb. 283. on Cont., Pars, on Part., 2 Conw. Rob. « Prater v. Miller, 35 Ala. 330 ; BusTvby Pr., 4 id., 5 id., 6 id., Selw. N. P., Smith v. Conway, 8 Md. 55. 350 COMPLAINT IN PAKTICTJLAR CASES. [CH. IV A. of the doctrine, that the complaint miist allege that the testator left assets more than sufficient to pay his debts;' a complaint which alleges that the plaintiif was about to make application to set aside a sale of premises, in which plaintiff was interested, on mortgage foreclosure, on the ground of irregularity, whereupon de- fondant promised to pay him a certain sum if he would not, is defective, unless it also aver that there was some doubt or dispute as to the regularity or validity of the judgment upon which the defendants therein might have founded a proceeding to vacate it." An agreement to pay an expert a certain sum, upon condition that the information possessed by him, or the testimony given by him should enable the promisor to succeed in an action relating to a patent, the promisor agreeing at all times to hold himself in readiness to give his testimony or to impart his information as an expert, is contrary to public policy and void. ^ So an agreement by the guardian of an infant with a person becoming surety on his official bond, that the latter shall hold the property of which the former is custodian for his own indemnity, because subversive of the objects of the appointment.* A mere stakeholder cannot object that the contract between other parties, under which money reached him, was illegal, unless the court, in determining the action, will be compelled to carry out part of the illegal contract between the original parties." It is not illegal to subscribe money to aid in a revolutionary struggle in another country, if no viola- tion of the neutrality laws be contemplated.' Incorporation. — It is not necessary for a corporation suing in a name which would indicate it to be such to allege that it is incorporated.' Indemnity bond.' — A bond to indemnify a constable for levying upon and selling property which he had previously levied upon is valid, notwithstanding the constable had previously levied upon the same property by virtue of other executions, and that fact was not disclosed to the obligors.' Infant.'" — A complaint upon a contract against one concededly ' BusTihy v. Conway, 8 Md. 55. ' PTicenix Bank v. Donnell, 40 N. « Doleher v. Pry, 37 Barb. 153. T. 410. ' Pollak V. Qregory, 9 Bosw. 116. * See ante, title " Bond." * Poultney v. Bandall, 9 Bosw. 232. ' Berry v. Hemingioay, 56 Barb. 70. ^ WoodworfhY. Bennett, ^Z'^.yi.%1%. '"Upon tbe subject, generally, see ' Bailey v. Belmont, 10 Abb. N. S. 370. Tyler on Infancy & Coverture, Reeve's CH. IV A. j COMPLAINT IN PAKTICULAR CASES. 351 an infant wMch alleges that the defendant, knowing his age, falsely and fraudulently represented that he was of full age, whereby the plaintiif was induced to sell him goods, does not state a valid cause of action, if the contract he made the gravamen thereof;' otherwise if the action sound in fraud, and he brought for the fraud alleging the contract as an inducement merely,'' but the assertion that he is not an infant must be in the particular transaction complained of.° If goods be delivered to an infant, to sell as the plaintiff's agent, and to account therefor, a complaint which alleges that he has refused to account therefor is not valid,* although if the com- plaint were founded in tort for refusing to deliver the goods or perhaps for converting the avails it would lie ;* nor is he liable for mere nonfeasance." An infant is liable for money actually expended for necessaries, or for money lent to be expended for necessaries.' The mother of an infant cannot, without being appointed his guardian, serve a notice to quit on behalf of the infant so as to maintain ejectment ;' but if a father, without the knowledge of, or by the authority of his son, obtain his appoint- ment as guardian it will be assumed to be properly done, unless Dom. Rel., Addison on Cent., Addison Stikeman v. Dawson, 1 De Ges. & Sm. on Torts, Benj. on Sales, Bl. Com., 109. Bout. Inst., Broom's Com., Broom's ' jEfcfcsJjJTi v. i/VawA;, 1 Daly, 334, and Com. on Common Law, Chitty on many cases cited ; Wallace v. Morse, 5 Cont., Cowen's Tr. (Kiugsley's ed.). Hill, 392 ; and see Kitchen v. Lee, 11 Daniell's Chy. Prac, Estee's PI. & Pr., Paige, 107. We think all the cases Greenl. Ev., Wait's Law & Prac, can be harmonized by the fact that in Kent's Com., Kerr on Inj., Kerr on some cases the gravamen of the action Frauds, Parsons on Cont., Parsons on was held to be the contract, and in Part., 1 Conw. Rob. Prac, 3 id., 8 id., 5 others for the fraud although perhaps id., 6 id.. Roper on Leg., Selwyn's N. P. different courts might not agree as to Shear. & Redf. Neg., Smith on Cont., whether the particular action in fact Smith's Man. Com.L, Smith's Man. Eq., sounded in tort or upon contract ; see Smith's Real & Pers. Prop., Steph. the distinction fully discussed, 1 Pars. Com., Story's Agency, Story's Bq. Jur., on Cont. (5th ed.), 316-320. Story's Eq. PI., Story's Part., Story ^ Swain v. Heartt, 2 How. Prac, 90. on Sales, Taylor on Ev., Wait's Law * Hunger v. Hess, 28 Barb. 76. &Prac,Washb. Real Prop., Williard's ^Bobbins v. Mount, 38 How. 82, 4 Eq., Williams on Ex'rs, Williams's Rob. 561. Pers. Prop., Williams's Real Prop. ' Bandall v. Sweet, 1 Den. 460 ; ' Brown v. McCune, 5 Sandf . 224 ; Smith v. Olipha/nt, 3 Sandf . 306, which Merriam v. Gunningha/n, 11 Gush. 40 ; seems to hold the point was not, in De Boo V. Foster, 13 0. B. N. S. 372, fact, decided in the same case the fall 104 Eng. C. L. Rep. and cases cited; before (Reported, 7 N. Y. Leg. Obs. Price V. Hewett, 8 Exch. 146, 18 Eng. 17). Law & Eq. 533, and cases cited in » Bead v. Kennedy, 13 Irish Law note p. 533 ; see note to Whitelock's Rep. 565. case, McNaghten's Select Cases, 129 ; 352 COMPLAINT IN PAETICTJLAE CASES. [CH. IV A. shown to the contrary, and the action will not be defeated by proof that the son was beyond the seas at the time of the appointment.' Injunction.'''— When the injury complained of was completed before suit the court will grant a mandatory injunction, although lit will do so only to prevent extreme or very serious damage.' The erection of a building will not be restrained merely because it deprives an ancient window of some portion of its light,* unless plaintifl' show he will sustain substantial damages,' for he has an adequate remedy by an action at law. An injunction will lie against one who covenants even by parol, not to use his building lot except for a certain purpose or in a particular manner, and so against one purchasing with knowledge of such a covenant." After a decree in partition the court may grant an injunction to restrain a defendant from wasting or injuring the property,' but an injunction will not be granted to restrain a railroad com- pany from running its trains over the plaintiff's lands sold to it by him until paid for.' A defendant will be restrained by injunc- tion from violating an agreement not to disclose a secret process of manufacturing an article," or to use it elsewhere except in the plaintiff's business." So one who has obtained a knowledge of such a secret will be restrained from using or divulging it if his doing so would be a breach of trust." " Morgan v. Thorne, 7 Mees. & Abb. 292 ; WrigM v. M>ans, 2 Abb. N. Welsb. 400. S. 308 ; Jones v. Bone, L. R. 9 Eq. ^ See on the subject, generally, 673 ; Carter v. Williams, L. R. 9 Eq. Drewry on Inj,, Kerr on Inj. (Am, 678; Dorr v. Harralian, 101 Mass. ed.), Kerr on Frauds & Mistake, Joyce 531 ; Perhins v. Ooddington, 4 Rob. on Inj., Hilliard on Inj., Waterman's 647, 650; Wheeler v. Oilsey, Z5 How. Eden on Injunctions, Addison on Torts, 146, 147 ; see Wolfe v. Frost, 4 Sandf. Daniell's Chy. Prac, Bstee's Pl,,Barb. Ch. 72, and Moak's note to Clarke's Cby. Prac, Adams's Bq.,Willard's Eq., Cli. 392, marg. p., Lester v. Barron, Ang. on Wat. Courses, Broom's Com., 40 Barb. 297 ; Maine v. Gumston, 98 Broom's Com. on Com. Law, Kent's Mass. 317, Kerr on Inj. 496 (Eng. ed.) Com., Kerr on Receivers, Stepli. Com., ' Bailey v. Bdbson, L. R. 5 Ch. App. Story's Eq. -Tur., Smith's Man. of Eq., 180. Story's Eq. PI., Tillingh. & Shear. Pr., s Munn v. Isle, etc., L. R. 5 Ch. App. Van Santv. Eq. Pr., Wash, on Ease- 414. ments, Washb. on Real Prop. » Leather, etc., v. Lorsont, L. R. 9 Eq. 2 Durell V. Pritohard, L. Rep, 1 Ch. 345 ; Hammer v. Barnes, 26 How. 174, App. 244; Oorning v. Troy, etc., 40 N. Kerr on Inj. 181 (Eng. ed.) ; Bryson v. T. 191. Whitehead, 1 Sim, & Stu. 74, and see ■* C^ajrAfiv. (7ter*e,L.E.lCh. App.l6. Dunlap's note to Banks's ed. ; but see * Robson Y. Whittingham, L. R, 1 Deming v. Ohapman, II How. 382, Ch, App. 442. Kerr on Inj. 525 (Eng. ed.) ; Newherry * Western v, McDermott, L. R. 2 Ch. v. James, 2 Meriv. 446 ; WiMiams v. App. 72 ; Talmadge v. East, etc., 26 N. WiUiams, 3 id. 157. T. 105, 2 Duer, 614 ; Maxwell v. Same, '" Toratt v. Winyard, 1 Jac. & Walk. SBosw. 124; Schenck v. Campbell, 11 Z^4;areenY.Folgam,\^imMStu.Z^K OH. IV A.] COMPLAINT IN PAETICULAB CASES. 353 So, although a court of equity cannot compel an actor or singer specifically to perform a contract to do so,' yet it will restrain him from doing so elsewhere than at a place where he has con- tracted to perform or sing, if the contract contain an agreement not to do so elsewhere '^ otherwise if the contract contain no such agreement,^ or if plaintiff has no theatre from which custom may be drawn.* In general a final injunction will not be granted unless specially prayed for by the complaint ; because the defend- ant might make a different case by his answer against the general words of the bill from what he would make against the special prayer for an injunction,' and so a temporary injunction should be prayed for if the facts upon which it is asked for exist at the commencement of the suit," and must demand some iiltimate relief relative to the matter in controversy,' and show the plaintiff entitled thereto.* The authorities, as above stated, hold that the complaint must pray for a temporary injunction. If the question were not res adjvdioata I do not see why it should be so held, where the complaint states facts which show the plaintiff entitled to such relief." An injunction will not be issued to restrain a mere tres- pass." Innkeeper." — An innkeeper is liable for the damages sus- tained by a guest from the kicking of his horse by a stallion, the property of another guest, if the stallion be negligently put in an open stall, although the owner himself be backing his horse from ^ Sanquirico v. Beneditti, 1 Barb. 315 ; * Eartt v. Rarmy, 33 Barb. 55. EaigH v. Badgeley, 15 Barb. 499 ; ' Beynell v. Sprye, 1 De Gex, MacN. iMmley v. Gye, 3 Ell. & Bl. 316, 75 & Gordon, 660, 1 Dan. Cb. Pr. (4tb Eng. 0. L. Am. ed.), 388, 3 id. 1614, 1683. * Kerr on Inj. (Eng. ed.) 531, 537; '» Iforra?/ v. ^reap^, 43 How. 463. W^stm" V. Billon, 3 Jur. N. S. 483 ; " Upon the subject, generally, see Fredericks v. Mayer, 13 How. 566, 1 Addison on Cont. 360, Addison on Bosw. 337 ; De Pol v. Solke, 7 Rob. Torts, Bl. Com., Bouv. Inst., Broom's 380 ; Fechter v. Montgomery, 33 Beav. Com., Broom's Com. on Common Law, 33, and notes S. C. ; Lumley v. Wagner, Chitty on Cont., Cowen's Treatise I De Gex, MacN. & Gord. 604, 619, 13 (Kingsley's ed.), Edwards on BaU- Eng. Law & Eq. 353 ; Hayes v. WilKo, ments, Hilliard on Torts, Hilliard on II Abb. N. S. 167. Remedies for Torts, Kent's Com., ' Butler V. Galletti, 31 How. 465. Parsons on Contracts, 3 Conw. Rob. ■> Be Pol V. Sollce, 7 Rob. 380. Prac, 4 id., 6 id., Selwyn's N. P., « 3 Story's Eq. Jur., 8 863. Shear. & Redf. Neg., Smith's Man. 0- ' Eo'oeyY.MoGrea,'^a.o-w.Sl;Ols8en L., Stephen's Com., Story on Bailm., V. Smith, 7 id. 481 ; Vincent y. King, Taylor's Bv., Wait's Law & Prac, 13 id. 339. Wooddeson's Lect. ' Mulce V. Thompson, 8 How. 475. 45 354 COMPLAINT IN PAETICULAE OASES. [CH. IV A. anotiier stall prepai-atory to leaving, and have paid his bill, altliougli the innkeeper would not be liable unless guilty of negligence in some way.' The owner of property loaned or hired to another is not a guest and an innkeeper is not liable to him as such,'' although if he be guilty of a tort or actual negligence resulting in the loss of, or injury to the goods of the owner he would be liable for that.' An innkeeper is liable for a package of extraordinary value, delivered to his clerk and put in his safe, although the owner do not give notice of its extraordinary character.'' When one goes to an inn in the character of a guest and stays there for smeral months, being occasionally absent for several days, but always with the intention of returning, he is a guest with all the rights and liabilities of such.' If an innkeeper keep a safe for the reception of money, jewels or ornaments, and posts up in the room of his guest a notice that they may be deposited in the safe, pursuant to a statute declaring that he shall not be liable for any loss thereof, in case the guest neglects to so deposit them, he is not liable for the loss of any money, jewels or ornaments, not deposited in the safe, not even for such as the guest requires for traveling expenses or personal convenience.' The statute, however, only exempts the innkeeper from liability for the precise property named thereiu, and he is liable for a watch,' The innkeeper, however, is liable for goods stolen after delivery to the guest, preparatory to leaving.' The lien of an innkeeper extends to all goods brought to the inn by a guest and received by him, though they are the property of a third person, provided he does not know they are such, as, for example, a piano-forte.' Insurance." — Upon a policy of insurance against fire, issued ' Seymour v. Oooh, 35 How. 180, 53 689, and Moak's note, p. 699 ; Jonei v. Barb. 451. Morrell, 42 Barb. 623. " Dawson v. Ghamney, 5 Q. B. 164, '» See Pars, on Marine Ins., Phillips 48Eng. C. L, ; S. C.,3 N. T. Leg. Obs. on Ins., May on Ins., Bunyan's Life 413. Assur., Add. on Cont., Add. on Torts, ' Goylcendall v. Eaton, 37 How. 446, Black. Com., Bouv. Inst., Broom's Com., 55 Barb. 188. Broom's Com. on Com. Law, Chitty on * WUkins V. EarU, 44 N. T. 173, re- Cont., Cowen's Tr. (Kingsley's ed.), versing 3 Rob. 352. Edw. on Bailm., Estee's PI. and Prac, ' Allen V. Smith, 13 C. B. N. S. 638, Greenl. Ev., Kent's Com., Kerr on 104 Eng. C. L. Frauds, Pars, on Cont., 1 Conw. Rob. « Hyatt V. Taylor, 4Z N. T. 258, 51 Prac, 2 id., 4 id., 5 id., 6 id., Selw. N. B. 632. P., Smith's Man. Com. Law, Steph. ' Bamaley v. Leland, 43 N. T. 539. Com., Story's Eq. Jur., Taylor on Bv., * BendUson v. French, 46 N. Y. 266. Wait's Law and Prac, Williams on ' TTi/relfall v. Borwiek, 3 Eng. Rep. Real and Pers. Prop. CH. IV A.J COMPLAINT IN PAETICULAE CASES. 355 to A, loss, if any, payable to B, the latter may maintain an action in his own name." Interpleader .' — In the examination of cases upon the subject of interpleader, the reader should bear in mind that there are, independent of sec.tion 122 of the Code, three classes of inter- pleaders. 1. Interpleaders at common law, which had a very narrow range, being confined to eases where there was a joint bail- ment by the claimants, and a few other cases." 2. Equitable interpleader, " where two or more persons severally claim the same thing under different titles, or in separate interests from another person, who, not claiming any title or interest therein himself, and not knowing to which of the claimants he ought of right to render the debt or duty claimed, or to deliver the prop- erty in his custody, is either molested by an action or actions brought against him, or fears that he may suffer injury from the conflicting claims of the parties. He therefore applies to a court of equity to protect him, not only from being compelled to pay or deliver the thing claimed to both the claimants, but also from the vexation attending the suits which are, or possibly may be, instituted against him." * 3. A suit in the nature of a bill of interpleader, which lies when the plaintiff claims some interest in the property or subject- matter of the dispute to establish his own rights and those of other claimants.' The complaint, in an equitable suit for interpleader, should ' SHnJe Y. The Ha/mpden, etc.,1 Abb. § 132, Voorhies' & Wait's Codes ; Add. N. S. 343 ; explaining Grosvenor v. on Cont., Add. on Torts, Black. Com., Atlantio, etc., 17 N. T. 391 ; Freeman Bouv. Inst., Broom's Com., Broom's \. Ikdton, eta., t4i Ab'h.Z^^t&'ni Fowler Com. on Com. Law, Drewry on Inj., V. New Torh, etc., 26 N. T. 435. Estee's PI. and Prac, Hilliard on Inj., ' Upon tlie subject, generally, see 3 Joyce on Inj., Kerr on Inj., Eedf. on Story's Bq. Jur., t^^ 801-824; Story's Eailw., Reeves's Hist. Eng. Law, Bq. PI. 391-397, c; 3 Waterman's Eden. Smith's Man. Com. Law, Till. & Shear. onlnj. Z^%,ma/rg.p. and notes ; Adams's Prac, Willard's Eq. Jur. Eq. 203-307, marg. pp. ; 3 Darnell's » 3 Story's Eq. Jur., §§ 801-804 ; Ch. Pr., 4tli Am. ed. ; Kerr on Inj. 118- Smith's Man. of Eq. 401. 131, Eng. ed. ; Equity Draftsman, 304, ■> 3 Story's Eq. Jur., § 806 ; Smith's and cases cited in note ; 3 Barb. Ch. Man. of Eq. 401 ; Adams's Bq. 202 ; 2 Pr. 118-126 ; Smith's Manual of Eq., Barb. Ch. Pr. 117. Ist Am. ed., 401-404 ; Curtis's Eq. Preo. ' 3 Story's Eq. Jur., § 834 ; Adams's 68-66 ; 1 Abb. Forms, 567 ; see, also, Eq. 306, marg. pp. ; Story's Eq. PI., note to Bedell v. Hoffman, 2 Paige, 201, § 397, 6/2 Waterman's Eden, on Inj. 2ded.,andMr. Dunlap'snoteto.Mi(;M2 399, OTftrg'. ^^. and notes; 3 Darnell's T. Eayne, 2 Sim. & Stu. 64, Banks's ed., Ch. Pr., 4th Am. ed. and Townsend and Wait's notes to 356 COMPLAINT IN PARTICULAR CASES. [CH. IV A. state the facts showing a right to compel the parties to interplead. It should state the plaintiff's own rights, and thereby negative any interest in the controversy.' It should state the facts relar tive to the several claims of the opposing parties specifically, so that they might appear to be of the same nature and character, and the fit subject of a bill of interpleader, to vidt : that there is a privity of some sort between all the parties, as privity of estate, or title, or contract, and that the claim by all is of the same nature and character." It should show that there are proper per- sons in being capable of interpleading and of setting up opposite claims.' It should show a clear title in the plaintiff to maintain the action, for otherwise the bill would be dismissed, however proper in other respects the case might be for an interpleader ; as if, for example, the bill should show the plaintiff had received the money as agent for one of the parties, it would be dismissed because he is bound to pay it over to his principal, notwithstand- ing any intervening claim of a third person.* It should show that the plaintiff claims no interest himself,' and should offer to bring the fund or property into court to be disposed of as the court shall direct.' It should pray that the defendants may set forth their several titles, and may interplead and settle and adjust their demands between themselves. It generally prays an injunc- tion to restrain the claimants, or either of them, from proceeding against the plaintiff upon or by reason of their claims or demands,' and that plaintiff may be paid his costs out of the fund or matter in dispute. The plaintiff" should also annex his affidavit that he does not collude with either of the defendants, and if by a cor- poration, an affidavit of one of its officers that he does not, and that, to the best of his knowledge and belief, the corporation does not collude with either of the defendants, should be annexed.' The bill being filed, the defendants are required to answer, setting out their claims. The plaintiff is not interested in or entitled to any judgment except that the defendants interplead.' This should be remembered by the defendants, for when that is rendered the plaintiff is out of the case, and if the unsuccessful ' Story's Eq. PL, § 293. « Atkinson v. Manks, 1 Cow. 691 ; 3 ■' Story's Bq. PI., § 393. Barb. Ch. Pr. 125 ; Seatou on Decrees, ' Story's Eq. PI., 5$ 295. 340 marg. p.; Kerr on Inj. 131 (Eng. " StorV's Eq. PI., 8 296. ed.) ; Bedell v. Hoffman, 2 Paige, 200. » Store's Bq. PI., § 297. CH. IV A.J COMPLAINT IN PAETICULAE CASES. 357 defendant after trial between the defendants appeal he is not bound to make the plaintiff a party to the appeal, and will not be liable to him for costs. In such cases there is this object in trying the case as to the plaintiff's right to maintain the action first, and having judgment rendered thereon, leaving the rights of the defendants as against each other to be determined as directed by the judgment. The plaintiff is under no obligation to serve a copy of the answers of the several defendants upon the others ;' although, under the old practice, defendants were entitled to read each others' answers at the hearing, and were allowed costs for a copy of the answers of other defendants, which were required to be filed before service.'' ISTor is one defendant entitled to notice of a commission issued by a co-defendant." Mr. Dickens was of opinion that such a commission could only be issued upon the question as to whether the plaintiff had proper cause for fihng a bill of interpleader, and that, as the rights of the defendants, as between themselves, must be tried after the decree, evidence taken before that could not be read against a co-defendant without notice of the application for the commission, and an opportunity to join therein.'' In this we think he is clearly right. A defendant who makes a claim against a co-defendant is an adverse party,' and under the Code° may compel a co-defendant to file his answer, and thus procure a copy thereof. The court, after determining that the action was properly brought, and that the defendants interplead, makes such decree as to the manner in which the rights of the defendants shall be determined as is appro- priate. If their rights depend upon equitable principles, it retains the case and settles them ; if upon legal, it awards an issue to be tried before a jury, authorizes one party to bring a suit at law against the other, or allows one of the parties to defend an action at law already brought by the other, reserving the case for further consideration.' We have thus been somewhat minute as 1 Moak's notes to Clarke's Ch. 15, ' Gotes v. Bmith, 31 How. 146 ; 28 ma/rg. p. ; and see Lemtt v. Fisher, 4 id. 436. Duer, 1. 6 Section 416. 2 Smith's Ch. Pr. (2d Am. ed.), 475 ; ' Lys v. Withers, cited in Seaton on Bovjyer v. Prichiurd, 11 Price, 103. Decrees, 340, marg. -p. ; Angell v. Had- ' Brymer v. Buchanan, 1 Cox Ch. den, 16 Ves. 303 ; Seaton on Decrees, 424. 340, marg. p. ; Curtis'e Eq. Prec. 447 ; * Duncannon v. Ca/mpbell, 2 Dickens, 2 Story's Eq. Jur., ^ 822 ; City Bank v. 648, note. Bangs, 2 Paige, 570-572 ; Waterman's 358 COMPLAINT IN PABTICULAR CASES. [CH. IV A. to the former practice after the complaint was served, in order to determine as well as we could the proper practice under a fourth class of interpleader allowed by the Code,' which provides that : " A defendant against whom an action is pending upon a contract, or for specific real or personal property, may, at any time before answer, upon affidavit that a person not a party to the action, and without collusion with him, makes against him a demand for the same debt, or property, upon due notice to such person, and the adverse party, apply to the court for an order to substitute such person in his place, and discharge him from liability to either party on his depositing in com-t the amount of the debt, or deliv- ering the property, or its value, to such person as the court may direct; and the court may, in its discretion, make the order." Ifo provision, is here made as to the course to be pursued after the order for the substitution of the adverse claimant is made. The complaint is, of course, against the original defendant, and we are not able to see how the substituted defendant is to answer that. The allegations are not against him, nor do they point to him. "We find no case upon the question, nor do we find any- where a suggestion as to the course to be adopted. "We think, however, that after the court, in this summary method, has deter- mined that an interpleader be had, in analogy to the practice of providing by the decree of interpleader how the rights of the defendants be determined, the order for interpleader should provide, as allowed by section 17Y of the Code, that the plaintifi', if so advised, be at liberty, within twenty days, to serve upon the sub- stituted defendant an amended complaint, alleging also the facts material to the case occurring after the former complaint. The plaintiff may then serve an amended complaint, containing sub- stantially the allegations of the former, and the further allegations that, on a day named, the plaintiff brought an action in this court against the original defendant (naming him) upon the aforesaid contract (or for the aforesaid specific real or personal property). That the original defendant before answer, xipon affidavit, that the substituted defendant, without collusion with him, made against EdenonIni.405,OTar5'.^p.; SDanieH'a Hodges v. Smith, 1 Cox Cli. 357, by Ch. Prac. (4tli Am. ed.) See Hasle- showing tliat the successful defendant wood, arguendo in Fairhrother v. Prat- gave evidence proving Ms case. tent, Daniell's Bxoli. 65, correcting ' Section 133, CH. IV A.] COMPLAINT IN PAETICULAE CASES. 359 him (the original defendant) a demand for the same debt or prop- erty, and did, upon due notice to said substituted defendant and the plaintiff, apply to this court, at a special term thereof (specify- ing the time when and the place where it was held), for an order to substitute said substituted defendant in his place and discharge him from liability to either party, on his depositing in court the amount of the debt, or delivering the property or its yalue to such person as the court might direct. That the court, at such special term, after hearing counsel for the plaintiff, for the original defendant, and the substituted defend- ant did make an order that, it appearing that the substituted defendant, without collusion with the original defendant, made a demand against him for the same debt or property, it was ordered that the substituted defendant be substituted as defendant herein, in the place of the original defendant, and that on the original defendant depositing with the clerk of the county named in the complaint as -the place for the trial hereof the amount of the debt, or the property specified in the complaint, he be discharged from liability to either party. That the original defendant has complied with said order by depositing with said county clerk the amount of such debt, or the said property.* The complaint should then demand judgment, that the plaintiff is entitled to the amount so deposited, or the property specified in the complaint, and that he recover his costs of the action. The substituted defendant by his answer to such a complaint can present proper issues for trial, and the court can render an intelligible judgment upon the issues thus presented. Should it be said that the plaintiff's action at law, in which he was entitled to a trial by jury, may thus be changed to a suit in equity, where he is not, we answer that the questions of fact which might have been raised on the original complaint are all determined in his favor by the order for an interpleader between him and the adverse claimant,' and that if any question of fact is raised by the answer of the adverse claimant to the amended complaint, either ' UnderUU v. Crawford, 18 How. 113 ; 29 Barb. 664. *0f course the pleader will use the name of the original defendant, instead of tho words "original defendant," and the name of the substituted defendant, instead of the words "substituted defendant." 360 COMPLAIN^T IN PARTICULAE CASES. [CH. IV A. party may procure a settlement of tlie issues,' and thus secure a trial by jury. It is no objection to a bill of interpleader, that one party's rights are legal and the others equitable, but they must both claim the same subject adversely and not under each other.'' The plaintiff may be deprived of costs and decreed to pay the costs of defendants who acted properly. Defendants, who, by persisting in an unfounded claim, have caused the suit to be proceeded with, may be decreed to pay the costs of their co-defendants and of the plaintiff? Interpleader lies against different persons cla imin g a reward.^ Intoxication/ — A complaint which seeks to set aside a con- veyance on this ground does not state a good cause of action unless it also show that the party was so completely intoxicated as to be deprived of the use of his reason or that the intoxication had produced senile dementia^ or unless it show, in addition to partial intoxication, some circumstances of fraud or undue influence." ITor is inadequacy of price alone suflQcient, unless so gross as to shock the conscience of any man who heard the terms, or so gross as to be conclusive evidence of fraud." Joint Debtors.' — A proceeding under section 375 of the Code to bind a joint debtor not originally summoned, is not a new action, but ' Supreme Court, rule 40. remedy see Moak's note to Clarke's Ch. ' Glynne v. Locke, 2 Connor & Law- 118, ed. 1869. son, 31. 6 Bv/rns v. O'Rourke, 5 Bob. 649, ' Fargo v. Arthur, 40 How. 193. Smith's Man. of Eq. 67 ; SmitTi v. ^ Upon the subject, generally, see Downing, West's Rep. 90, and cases Moak's notes to Clarke's Ch., pp. 96, cited in note ; Gory v. Oory, 1 Ves. 19 ; 430 (ed. 1869), Smith's Man. of Eq. 67, GooTc v. Clayswortli, 18 id. 15 ; Johri- West's Rep. 90 and note, Add. on Cont. son t. Medlicott, 3 Peere Williams, 130, 1033, Benj. on Sales, 23, Bouv. Inst. Smith on Cont. 348 (5th Am. ed.), and title " Drunkenness," Broom's Com., note 307, marg. p. Broom's Com. on Common Law, Chitty « Smith v. Downing, West's Eep. 90, on Cont. title Drunkard, Cowen's and see the numerous cases cited in Treatise (Kingsley's ed.), 2 Qreenl. Ev. Mr. West's note. § 374, 2 Kent's Com. 451, 452, marg. ' Upon the subject, generally, see pp., Kerr on Inj. 44, Kerr on Frauds, Moak's notes to Clarke's Ch. 173, ed. 147 (1st Am. ed.). Pars, on Cont., 3 1869, id. p. 100 ; Bouy. Inst., Chitty on Conw. Rob. Pr. 240, 5 id. 227, Selw. Cont., Cowen's Tr. (Kingsley's ed.), N. P. (18th ed.), 490, Smith on Cont. Daniell's Ch. Prac, Estee's PI. and 307, marg. p., and see the elaborate Prac, Kent's Com., Kerr on Frauds, note to Johnson's (5th Am. ed., pp. 435-27, 1st Am. ed. ; 1 Conw. Bob. 348, 349), Smith's Man. of Common Prac, 2 id., 3 id., 4 id., 5 id., 6 id.; Law, 74 (1st Am. ed.). Smith's Man. Selw. N. P., Smith on Cont., Steph. Eq. 66, Story's Eq. Jur., S^§ 230, 232, Com., Story's Eq. Jur., Story's Eq. PI., Steph. Com., Story on Sales, Taylor's Taylor's Bv., Till. & Shear. Prac, Van Ev., Wait's Law & Pr. 898, as to the santvoord's Eq. Pr.,Wait's Law & Prac, Willard's Eq. Jur. CH. IV A.J COMPLAINT IN PARTICULAR CASES. 361 a further proceeding in the old action,' so that the defendant not originally served could not, as the Code stood before the amend- ment of 1866, plead the statute of limitations ; ° otherwise, nnder that amendment,^ the judgment against a defendant not served is one of form only ; such defendants are not " judgment debtors " within section 388 of the Code, allowing the 7-epresentatives of a judgment debtor to be summoned." The original cause of action, and not the judgment, is the gist of the action.'' The proceeding under the Code is a substituted, not a cumulative remedy," and the plaintiff may bring a second action against both defendants alleging the recovery of the former judgment, setting out the joint obligation, and serving process on the defendant not served in the former action ; ' but this should not be done where, includ- ing the time after the rendition of the former judgment, the statute of limitations has run against the demand. The plaintiff can only protect himself from the running of the statute after the former judgment by proceeding under section 375. The proceed- ing under that section is to be only against the defendant not served.' The summons should conform to the requirements of the Code.' JSTo provision is made in the case of joint debtors for a new complaint, although there is for an affidavit that the judgment has not been paid." No new complaint seems to be contemplated by the Code. The defendant, '•'■upon 'such summons^'' may answer," but the answer would seem to be one to the original complaint," or more strictly, perhaps, to the summons, or the facts required to be stated therein,"' although it is not very material which, as the Code explicitly prescribes what defenses may be interposed by the answer." Mr. Crary seems to be of opinion that, in proceed- ings against heirs, next of kin or legatees, a complaint should be ' FaArcMld v. Durand, 8 Abb. 305. » Johnson v. Smith, 33 How. 445-46, = Berlin v. Haa, 48 Barb. 442. 14 Abb. 421. ' Code, § 879. - » §§ 377, 375 ; see 2 Crary's Pr. 484, ' Foster v. Wood, 1 Abb. N. S. 150, 485. 30 How. 384. 10 Code, § 378. 5 OaUey v. Aspinwall, 4 N. T. 513, " Code, § 379 ; Sa/rper v. Brnigs, 18 13 id. 500 ; Carman v. Townsend, 6 How. 457. Wend. 206. " See the various sections, particu- « Lane v. Salter, 4 Bob. 239, 343 ; larlv §§ 379, 380, 381. Bean v. Eldredge, 89 How. 218. '= 1 Crary's Pr. 608. ' Beam. v. Eldredge, 39 How. 218, " S 379. 232. 4e 362 COMPLAINT IJSr PAETICULAE CASES. [CH. IV A. served with the summons.' The Code, however, makes no such distinction. The action, if on contract, lies, although a wrongftil refusal be alleged." When co-administrators execute a joint bond as such, each, and the surety of each, is liable for the acts and omissions of the other, though one have received no portion of the assets.^ Judgments. — In an action upon a judgment the complaint should allege that leave to bring an action upon the judgment was duly granted under section seventy-one of the Code,* and although, perhaps, not strictly necessary, it should show when the order granting such leave was made ; that it was made for and upon good cause shown, and upon notice to the defendant.^ If the pleader do not avail himself of the provision of the Code allowing him to plead that a judgment or determination of an inferior court was duly given or made ; or, if it be a foreign judg- ment, ° he must set out facts showing that the court not only had jurisdiction of the subject-matter, but that it also acquired juris- diction over the person of the defendant,' except that, in an action against a plaintiff upon a judgment for costs, the pleader need not aver jurisdiction of the subject-matter." In an action upon a justice's judgment, the complaint should allege either that the parties appeared in the action and joined issue," or that a summons or other process was issued and personally served upon the defendant." But merely appearing and objecting to the jurisdiction is not such an appearance as will confer jurisdiction." The complaint should show, "bj facts, properly pleaded, that the coui-t had juris- diction of the subject-matter of the action -^^ but, on a plea of ' 3 Crary's Pr. 485-87. 341, and cases cited in note ; but see ^ Austin V. Rawdon, 44 N. T. 63. BurnliamY. Webster, 'Da.Vies's.Re^.'ZH.- 3 Pricnard v. The State, 84 Ind. 137. 343. < Graham v. Scripture, 36 How. 501 ; ' NifhoU v. Mason, 31 Wend. 340; but see Dean v. Eldredge, 39 id. 331 ; Glapp v. Qraws, 36 N. T. 418. Lane v. Salter, 4 Rob. 341; Prince ■!!. " Hart v. Seixas, 31 Wend. 40; Cujas, 7 id. 77 ; Mnoh v. Carpenter, 5 Barnes v. Ma/rris, 4 N. Y. 375, which Abb, 325. gives the form of a declaration held ^ Oraham, y^. Scripture, 2% How. 501. good upon such a judgment in an action ^ Ante, marg. p. 371. commenced by s.ummons ; and see Fos- ' Turner v. Boby, 3 N. T. 193. ter v. Hazen, 18 Barb. 547, commenced 8 Tiirner v. Bdby, 3 N. T. 193 ; King by warrant. • V. Poole, 36 Barb. 343 ; Guniberland, " WiUi7t,s v. Wheeler, 8 Abb. 117. etc., V. Hoffman, etc., 15 Abb. 78, 39 i« Tardier v. Bdby, 3 N. T. 193. Barb. 16 ; Brockett v. Bush, 18 Abb. OH. IV A.J COMPLAINT IN PAETICULAR OASES. 363 former judgment in an inferior court, if tlie complaint show a cause of action of wliich that court would have had jurisdiction, a plea that plaintiff impleaded the defendant " for the same cause of action mentioned and specified in the declaration," is good.' In an action upon a judgment of an inferior court, in favor of a plaintiff, the complaint should allege that the cause of action in the original suit arose within the- jurisdiction of that court.' In an action upon a foreign judgment, even of a superior court,yaefe must be pleaded which show the court rightfully exercised juris- diction.' An appearance therein by attorney will be prvma facie suffieient.* A foreign judgment or determination in bankruptcy will not confer such a title to the bankrupt's estate, upon a trustee appointed in such proceeding, as will enable him to sustain an action here therefor.' In an action upon a foreign judgment against joint debtors, only one of whom was served, even as against the defendant served, the complaint should allege that, by the laws of the State or country, such judgment might prop- erly be entered." Landlord and tenant.' — An action for the breach of a cove- nant upon the part of a lessee, that he will make repairs during the term of a lease, or that he wiU not make alterations in the premises leased, without the consent of the lessor, may be main- tained by the lessor, without awaiting the expiration of the term of the lease;' and the landlord may, before the expiration of the term, recover of the tenant for injuring the demised prem- ' Nieholl V. Mason, 21 Wend. 340. ' Upon tlie subject, generally, see '•^ Bead v. Pope, 1 Cromp., Mees. & Piatt on Leases, Taylor's Landlord and Rose. 303, 4 Tyrrwh. 403. See 4 Conw. Tenant, Addison on Oont. , Addison on Eob. Pr. Ill, 5 id. 828, 841, 6 id. 431- Torts, Bl. Com., Bouv. Inst., Broom's 441. For precedents, see Yates's PI. Com., Broom's Com. on Common Law, 285, 299, 1 Humph. Prec. 683, 683, 1 Chitty on Cent., Cowen's Tr. (Kings- Abb. Forms, 334. ley's ed.), Daniell's Cli. Pr., Estee's PI. ^ Burnham v. Webster, Daveis's tJ. S. and Pr., Hilliard on Torts, Hilliard's Rep. 336, 240, 341, but see 3 Conw. Rob. Rem. for Torts, Kent's Com., Kerr on Pr. 505-508, 1 id. 317, 6 id. 421, 441. Inj., Kerr on Receivers, Pars, on Cont., For precedents, see 2 Cbitty's PI. 343, 1 Conw. Rob. Pr., 3 id., 4 id., 5 id., 6 245, 415, 486, 487, Tates's PI. 291, 8 id., Selw. N. P., Smith's Man. Com. Burr. Pr. 278, 279, 1 Abb. Forms, 334, Law, Smith on Cont., Steph. Com., 335, 2 id. 23, 33, 4 Conw. Rob. Pr. 113- Taylor on Ev., Tidd's Pr., Tyler on 117, 5 id. 838, 841, 6 id. 431, 441. As Ejectment, Wait's Law and Prac, to judgments rendered in Canada, see Washb. on Real Estate, Washb. on Laws 1868, vol. 2, p. 1233. Eas., Waterman's Eden on Inj., Wil- * Bank v. Suntington, 13 Abb. 403. lard on Real Estate, Williams on Real ^ Moaselman v. Oaen, -34 Barb. 66. Prop. « Knapp V. AMI, 10 Allen, 485, 488- » Webster v. Msser, 3 Abb. N. S. 39, 490. 33 How. 136. 364 COMPLAINT IN PARTICULAR CASES. [CH. IV A. ises.' Where the owner of a farm let it to another, to work on shares, fiirnisliing certain stock, which was to be kept thereon, and the increase divided, agreeing to deliver to the owner one-half of the grain, potatoes, etc., in the half bushel, and one-half the butter, cheese, etc., together with one-half the growth of stock, but noth- ing was said as to the hay raised beyond what was necessary to be fed to the stock, held, it belonged to the lessee, and the owner, having ousted him from possession of the farm, was liable for the hay beyond what he properly fed to such stock." As to the hay which the tenant agreed to feed the stock, the owner did not render himself liable for the conversion thereof by himself so feeding it.^ A lessor has no remedy in equity for the breach of a covenant not to under-let. If he has the right, by the terms of the lease, to re-enter, he must proceed at law ; or he may waive the right to enter and recover his damages. But the lessee or his under-tenant will be restrained from using the premises demised contrary to his covenant,* and a mere recital in the lease of the purposes for which the premises are let has been held to constitute a covenant.^ Conceding one who agreed not to under-let may take boarders, such boarders may be restrained from carrying on any business, such as a dentist, in the house." In ejectment by the landlord, on the ground that the tenant, by under-letting, has forfeited the lease, a receiver of the rents and profits may be appointed during the litigation, and to prevent waste during the remainder of the term.' A landlord is under no obligation to repair unless he stipulate so to do, and then only after a reason- able time after the necessity for such repairs arose ; ° and notice thereof," unless he stipulate in the lease for the right to enter at aU times and make repairs." If there be no stipulation to repair in the lease, a subsequent agreement to do so, or to pay damages sustained by the tenant from the necessity therefor, is without ' iSoj/ -v. Ayers, 5 Duer, 494 ; Provost, ' Ambler v. SHnner, 7 Eob. 561. etc., V. Hallett, 14 Bast. 489. See Bag- ' Ireland v. NiehoU, 37 How. 333. ley v. Smith, 1 N. T. 489, and TeUowly » Walker v. Gilbert, 2 Bob. 214 ; Sher- V. Qower, 11 Exch. 274, 295, and note wood v. Seaman, 2 Bosw. 137 ; BoSbim to Am. ed. t. Mount, 33 How. 24, 4 Bob. 561 ; note s Burdick v. WasMv/rn, 36 How. 468. to Gampiell v. Wenlock, 4 F. & F. 733 ' Burdick v. WasMurn, 86 How. 475 ; but see Johnson v. Dixon, 1 Daly, 178 _ I V. Grenville, 1 Taunt. 241. 'MakinY.Watkinson,'L.'B,.,6'Eizch.25 Gillian v. Norton, 33 How. 373 ; but see Hayden v. Bradley, 6 Gray, 435. Ambler v. Skinner, 7 Rob. 561. "> Hayden v. Bradley, 6 Gray, 435 ' Giilian v. Norton, 33 How. 373. Kerr on Inj. 86. CH. IV A.] COMPLAINT IW PARTICULAR CASES. 365 consideration and void.' And the tenant's sending his goods for sale at auction, and having them so sold at the landlord's sugges- tion, is not a sufficient consideration to uphold a promise to pay the difference between the invoice price and the amount they might bring at auction." If a third person sustain damages by reason of the non-repair of an adjoining house, as the lead and gutters, in the occupation of a tenant, the law presumes the tenant was bound to make the repairs, and the landlord is not liable,' unless he created or allowed the state of affairs which produced the injury before renting the premises,* and not then if the tenant's use is what produces the injury .° Nor is the owner of a ferry liable to one injured by the servant of one to whom he has leased it." If apartments in a house are rendered unfit for occupancy by the overflow of a privy the tenant may leave them, and is not liable for the rent thereof;' other- wise as to a tenant occupying an entire house, for it is his duty to empty the privy;' and so if the trouble arise from something which the tenant can discover and remove by ordinary diligence.' There is no implied warranty on the part of the landlord who lets premises that they are tenantable," but if he rent them know- ing that a cause exists which renders them unfit for habitation, without giving notice thereof, he is guilty of a fraud, and the tenant is not bound to pay rent if within a reasonable time after the discovery of the fraud he repudiates the contract," although he enter under the lease." Letters." — The person receiving a letter has a sufficient prop- ' Walker v. OUbert, 2 Rob. 314. '' Fash v. Kmamagh, 34 How. 347, "^ Walker v. Gilbert, 3 Rob. 233-3. Laws 1860, p. 593. ' Batterman v. Mnn, 33 How. 501 ; * Fash v. Kamnagh, 34 How. 349. Kastor v. Newhouse, 4 B. D. Smith, 30 ; ' Westlake v. Degraw, 35 Wend. 669. Mch V. Basterfield, 4 C. B. 783, 56 Bng. '» Wallace v. Lent, 1 Daly, 481, 39 C. L., 5 N. T. Leg. Obs. 468, reversing How. 289, Kerr on Frauds, 61 (Eng. S. C, 3 Car & Kirw. 357, 61 Eng. C. L. ; ed.). Bobbins v. Mount, 33 How. 34, 4 Rob. " Wallace v. Lent, 1 Daly, 481, 39 561 ; and see Meg. t. Barrett, 9 Cox How. 389 ; but see Keates y. Earl of Cr. Cases, 355 ; but, see Connavan v. Oadogan, 10 C. B. 591, 70 Eng. C. L., 2 Oonklin, 1 Abb. N. S. 271, 1 Daly, 509. Eng. Law and Eq, 318, Kerr on Frauds, * Waggoner v. Jermaine, 3 Den. 306 ; 61 (Eng. ed.) ; Milliken v. Thorndike, explaining Blunt v. Aiken, 15 Wend. 103 Mass. 383. 534; Bobbins v. Mount, 33 How. 34, 4 ''' Milliken v. Thorndike,10SMas3.3S2. Rob. 561 ; Bellows v. Saekett, 15 Barb. '' Upon the subject, generally, see 96 ; Pickard v. Collins, 33 id. 445 ; 2 Story's Eq. Jur. § 944, Smith's Man. Moody Y. Mayor, 43 id. 283. of Eq. (1st Am. ed.) 431, Kerr on Inj. = Rich Y. Basterfield, supra. 186, 189, 450, 603, WiUard's Eq. 385, ' Norton y. Wiswall, 26 Barb. 618. 386, Waterman's Eden, on Inj. 331 et 366 COMPLAINT IN PARTICULAR CASES. [OH. IT A, erty in the paper upon which it is written to entitle him to main- tain detinue for it against the sender, into whose hands it has come as a bailee.' The writer however may restrain its publication." Letters not possessing literary value, although they pass to the personal representative, are not assets which may be sold or assigned. They pass to the widow or next of kin.° Lien/ — Where one was fraudulently induced to release a lien, the purchaser from the person procuring it was decreed to pay the ptirchase-money, to the extent of the lien, to the incumbrancer ;' and so the satisfaction of a judgment fraudulently procured will be set aside on a bill in equity,' and even upon motion.' The vendor of real estate has an equitable lien thereon for the piu*- ehase-price ;° and so has the purchaser for payments made where the vendor refuses to or cannot perform," or for money expended in compliance with the contract, relying upon performance by the mq.. Add. on Torts, Black's Com., Bouv. Inst., DanieU's Ch. Pr., Drewry on Inj. 306, 207; supplement to do. p. 37, 3 Estee's PI. 243, Hilliard on Inj., Hilliard On Torts, Willard's Eq. Jur. 385, 386, 2 Williams on Executors, 1733. 1 Olimr V. OUmr, 11 C. B. N. S. 103, Eng. C. L. 139. ^ Eyre v. Highee, 15 How. Prac. 45 ; Wolsey V. Judd, 4 Duer, 379, 11 How. Prac. 49, 3 Story's Eq. § 944 ; see, how- ever, Hoyt V. McKemie, 3 Barb. Cli. 120 ; Fleming v. Newton, 1 H. L. Cases, 363 ; Qlyn Y. Oaiilfield, 3 MacN. & Gord. 463. 3 Eyre v. Higlee, 23 How. 198. * Adams's Eq., Add. on Oout., Add. on Torts, Benj. on Sales, Black's Com., Bouv. Inst., Broom's Com. on Common Law, CMtty on Cont., Cowen's Treat. (Kingsley's ed.), DanieU's Gh. Prac, Edw. on Bailments, Estee's PI. & Pr., Fry on Specific Pert'., Index to Moak's notes to Clarke's Ch., ed. 1869, Hilliard on Torts, Kent's Com., Kerr on Frauds (1st Am. ed.), 247, 351, 233, 244, 351, Pars, on Cont., 4 Conw. Rob. Prac. 305, 6 id.. Roper on Leg., Sedgw. on Dam., Selwyn's N. P., Smith's Man. C. L., Smith's Man. of Eq., Index and, also, pp. 65, 226, 178 (1 Am. ed.). Smith on Real & Pers. Prop., Steph. Com., Story's Eq. Jur., Taylor's Ev., Tidd's Prac, Wait's Law & Prac, Washb. on Real Property, Willard's Equity, Willard's Real Estate, Wil- liams on Executors, Williams on Per- sonal Property, Williams on Real Prop- erty. ' Steiiins v. Sowell, 34 How. 83, 1 Keyes, 240 ; see Johnson v. Crane, 40 Barb. 78. '' Eyre v. Burmester, 10 House of Lords Cases, 90 ; Wa/rner v. Blake- man, 36 Barb. 501, 4 Keyes, 487. ■■ Matter of Beers, 5 Rob. 643 ; Acker- man V. Ackerman, 14 Abb. 339 ; Ander- son V. Nicholas, 4 Rob. 630 ; Ferris v. Crawford, 2 Den. 595 ; In re Tresid- der. Law Rep. 1 Ch. App. 30; Wa/r- dell V. Eden, 2 Johns. Cases, 131, id. 358 ; Suydam v. Holden, Seld. Notes, Oct, 1833, p. 16 ■,Taylor v. Ranney, 4 Hill, 619 ; Martin v. Hawks, 15 Johns. 405 ; Beebe v. Bank, 1 Johns. 539 ; but, see Timan v. Leland, 6 Hill. 337. * Chilton V. Braiden, 3 Black, U. S. 458, Moak's notes to Clarke's Ch. 275, and cases cited ; Ooppin v. Coppin, MacN.'s Select Cases, 91, marg. p., Hoffman's note to Blaekiurn v. Oregson, 1 Cox Ch. 91 ; Whitloch v. Lysaght, 1 Sim. & Stu. 446, and Dunlop's note to Banks's ed. ; same to SeOrg v. fifeffiy, 4 Russ. 341 ; see Eulett v. Whipple, 58 Barb. 237. ' Mose V. Watson, 10 House of Lords Cases, 673; Melndoe v. Mormmi, 36 Wise 588. CH. iVA.j COMPLAINT IN PAETICULAE CASES. 367 vendor.' An agreement that a mortgage shall have priority over one already recorded is good and will be enforced in equity." A constable who levies upon the interest of the judgment debtor, in property legally held by a third person by virtue of an existing lien, is liable in trespass if he removes such property from his possession.^ By statute a lien in favor of any innkeeper, board- ing-house keeper, mechanic, workman, or bailee may be enforced and foreclosed in any court having jurisdiction of the amount of such lien.* Libel.' — A corporation may maintain an action for a libel affect- ing its business and credit f and so an author whose work has been unjustly and maliciously criticized ;' but he must allege and prove special damage.' So the action lies for a portion of a letter, although another portion may be privileged.' So for a letter insinuating that the plaintiff had stolen growing flowers ;" for insinuating that the plaintiff had sent a threatening letter ;" and for insinuating that plaintiff's place of business was not respectable;'" for falsely pub- lishing plaintiff's marriage to a prostitute; but the complaint must allege that defendant knew its falsity ;" and so of any libel not such upon its face, but rendered so by extrinsic circumstances or facts.'* And where the publication is not libelous ;per se, the plaintiff must allege special damages." An action will not lie against a member of a court martial for censuring the conduct of one tried before the court, in a finding which honorably acquits him, for ' Moak's notes to Clarke's Cli. 350, ' Oharles Meade y. Swertzer, 6 Abb. ma/rg. p., and cases cited ; Savage v. N. S. 9, note ; for criticizing " Griffith Taylor, Talb. Rep. 234 ; KanawTm, etc., Gaiint ;" an interesting case, wherein V. Kanawha, etc., 7 BlatcM. 421. the origin of many of the characters ° Preema/n v. Schroeder, 29 How. is shown, and resulting in a verdict of 263, 43 Barb. 618. six cents only. ' Truslow V. Putnam, 1 Keyes, 568. ' Swan v. Tappan, 5 Gush. 104 ; Oald- * Laws 1869, vol. 2, p. 1786, 7 Edm. well v. Raymond, 2 Abb. 197. Stat. 469. ' Warren v. Warren, 1 Cromp., Mees. ' Upon the subject, generally, see and Eosc. 250. Townsend's Libel & Slander, Starkie's '" Gardner v. Williams, 2 Cromp., Libel & Slander, Addison on Torts, Mees. and Eosc. 78, affirmed, 1 Mees. Bl. Com., Bouv. Inst., Broom's Com., and Welsh. 245. Broom's Com. on Common Law, Chitty " Harvey v. French, 1 Cromp. and on PI., Estee's PI. , Greenl. Ev., Hilliard Mees. 11. on Torts, Hilliard on Eem. for Torts, '^ Barrett v. Long, 3 House of Lorda Kent's Com., 3 Oonw. Rob. Pr., 4 id., 6 Cases, 895. id., Sedg. on Dam., Selw. N. P., Smith's '' Caldwell v. Raymond, 2 Abb. 193. Man. C. L., Steph. Com., Taylor's Bv., " Caldwell v. Raymond, 2 Abb. 197. Tidd's Pr. " Caldwell v. Raymond, 2 Abb. 197. ^ Knieherboaker Life, etc., v. JEedesine, 6 Abb. N. S. 9. 368 COMPLAINT IN PARTICULAR CASES. [CH. IT A. the seatence, altliough read to every regiment in the service, is privileged/ Light.' — The owner of adjoining premises may, by building a high fence, exclude the light from his neighbor's premises.' Lost bill of exchange or note." — In an action upon a lost note it is not necessary to allege a tender of the bond of indem- nity required by statute, as such a tender at the trial is sufficient,' but in a case not provided for by statute, where the suit must be brought on the equity side of the court, such indemnity must be tendered before suit, and the tender averred so that issue can be taken thereon," or the bill in equity must offer to give such indemnity as the court shall direct.' l^o indemnity need be ten- dered or offered by the bill where the lost instrument is not negotiable, as, for instance, a policy of insurance.' A note which has been accidentally destroyed is not a lost note, and plaintiff may recover thereon without indemnifying the maker against the same." But the evidence should satisfy the jury beyond a reason- able doubt of its destruction.'" An action at law, independent of a statutory provision, will not lie on a lost note ; but if, at the time of the trial, a recovery upon the lost note would be barred by the statute of limitations, the action may be sustained." A note which is out of the State, in the hands of a wrong-doer, cannot be recovered upon as a lost note either at law or in equity ; " ' Jeki/U V. Sir John Moore, 6 Esp. Selw. N. P., Smith's Man. Com. Law, N. P. 63. Smith's Man. Eq., Steph. Com., Story's ^ Upon the subject, generally, see Bq. Jur., Tayl. on Ev. (6th ed.), 435, Addison on Torts, Bl. Com., Bouv. Inst., § 407. Broom's Com., Broom's Com. on Com. ' Brookman v. Metcalf, 4i Rob. 568, Law, Cowen's Tr. (Kingsley's ed.), 34 How. 568 ; Desmond v. Bice, 1 Hilt. Danlell's Ch. Pr., Hilliard on Torts, 530. Kerr on Inj., Kerr on Frauds (1st Am. * The Gonflans. etc., v. Parker, L. R. ed.), 850, 3 Conw. Rob. Pr., 4 id., 6 id., 8 C. P. 1 ; Aranguren v. Scolfield, 1 Selw. N. P., Smith s Man. C. L., Steph. Hurl. & Norm. 494, Adams's Eq. 167, Com., Washb, Eas., Washb. Real Prop,, 168, marg. p. Wat. Eden on Inj., Willard on Real '1 Story's Eq„ §§ 81-88; Smith's Estate, Williams on Real Property. Man. of Eq. (1st Am. ed.) 40-43 ; Adams' 3 Pickard v. OoUins, 33 Barb. 444 ; Eq., 167-68, marg p. , V. See, 4 Rob. 467. * England v. Lord Tredegar, L. R., 1 * See Cow. Treat. (Kingsley's ed.), Eq. 344. g§ 400-408, 1878, 1 Wait's Law &, Pr., « Bes Arts y. Leggett, 16 N. T. 583, 433-36, Edw. on Prom. Notes, Story 588; Pierson v. Hutchinson, 3 Camp, on Prom. Notes, Pars, on Bills, Story 311 ; Moses v. Trice, 31 Gratt. 556. on Bills, Adams's Eq., Add. on Cont., "> Moses v. Trice, 31 Qratt. 556. 814, Broom's Com. on Com. Law, 494, " Van Alstyne v. Nat. Com. Bank 7 Daniell's Ch. Pr., Estee's PI., Kent's Trans. App. 241 ; McEwen v. The Earl, Com., 3 Conw. Rob. Prac, 5 id., 6 id., etc., 6 Irish Law Rep. 144. CH. IV A.J COMPLAINT IN PARTICULAB CASES. 369 otherwise, if it be deposited in the hands of a third person by an arrangement between the parties and be produced by him on the trial.' It is not necessary to allege the loss in the complaint." The remedy to recover for bank bills which were lost by the sinking of a ship is in equity, for they may possibly be recovered.' A negotiable instrument, lost after suit brought, may be recovered upon on tender of indemnity at the trial.* The indorsee of a bill of exchange, which has been lost, has a remedy against the acceptor by a bill in equity to compel pay- ment, notwithstanding he might have recovered on the bill at law, his equity being founded in a court of law to impose terms on the plaintitf of giving the defendant security against the forth- coming of the bill, which would have been good ground ibr an injunction to restrain such action. The drawer is not a necessary party. ° Another distinction in the case of a lost bill or note is, that where it is payable to bearer or to order, and indorsed generally, the plaintitf cannot, independent of a statute, recover at law,' while, if indorsed specially, he may.' Malicious prosecution.' — A complaint which only alleges that defendants maliciously, and with intent to injure the plaintiff, illegally and without warrant arrested, and by force compelled her to go to a police station, and there restrained lier of her liberty, is for false imprisonment and not for malicious prosecu- tion.' An averment of want of probable caiise in a complaint for malicious prosecution is indispensable ; an allegation that the charge was false is not, nor is one that it was maliciously made, sufficient." Good faith, however, is not sufficient. There must be reasonable ground for suspicion, supported by circumstances sufficiently strong in tliemselves, to warrant a cautious man in the ' Selden v. Pringle, 17 Barb. 458, ' Long v. Bailie, 2 Oamp. 314, note, 468. and note to Wils. Exch. 112. ^ Board, etc., v. White, 30 Barb. 72. ' Upon the subject, generally, see " lim^ris v. Moody, 4 Bosw, 234. Add. on Torts, Black. Com., Bouv. Inst., * Jacks V. Darrin, 1 Abb. 148, 3 B. Broom's Com., Broom's Com. on Com. D. Smitli, 548 ; overruling the dictum Law, Chitty's PI., Bstee's PI, Greenl. in 3 Cow. Tr. (2d ed.) 184 and see Jacks Bv., Hill, on Torts, Hill. Rem. for v. Darrin, 3 E. D. Smith, 557. Torts, 3 Conw. Rob. Pr., 4 id., 6 id., 5 Bavies v. Bodd, 4 Price, 176, Wils. Sedgw. Dam., 8el w. N. P., Smith's Com. Excli. 110; see, also, Walmesley v. Law, Steph. Com., Tayl.Bv., Tidd's Pr. Child, 1 Ves. 841 ; Toulmin v. Price, ' Burns v. Erien, 1 Rob. 555, 26 5 id. 335 ; Ex parte Qreenway, 6 id. 813. How. 373, 40 N. T. 463. « Ex parte Qreenway, 6 Ves. 813, " Given v. Webi, 7 Rob. 65. note to Wils. Exch. 112. 47 370 COMPLAINT IN PARTICULAE CASES. [CH. IV A. belief that the plaintiff was guilty.' Belief, and reasonable grounds for belief, are both essential.' Where, after suit but before judgment, defendant paid a part of the claim, but plaintiff nevertheless signed judgment for the full claim, issued a ca sa therefor, caused the defendant therein to be arrested and compelled to pay the full amount, held, the action would not lie while the judgment stood for the full amount.' He should have moved to set aside the judgment or to set aside the execution on payment of the sum actually unpaid f although a party is liable for maliciously causing another to be arrested for too large a sum upon mesne process.* And if a pay- ment be made after judgment and execution be issued, without deducting it, the action will lie.' The complaint must allege that the prosecution was institute/i maliciously and without prob- able cause, and was terminated in favor of the plaintiff, even though the party be summarily convicted under a statute giving no power to appeal." It is doubtful whether the entry of a com- mon-law nolle proseqtd, which could be entered by the prosecuting officer without the sanction of the court, is a sufficient termina- tion ; ' but, under the statutes of ITew York, providing a nolU prosequi shall not be entered without leave of the court,' oue thus entered is sufficient ; " but the mere discharge of the defend- ant from his recognizance is not a sufficient termination." Where judgment is procured without personal service, so that the party has no opportunity to be heard, it is not a bar to the action if reversed on appeal ;" nor is a judgment fraudulently procured by means which prevented the plaintiff from setting up his defense.'" It has been doubted whether the action will lie against a cor- ' aiiafer v. Louckn, 58 Barb. 436. ' Hmard v. Bohuon, MS., Gen. T., = Haffer v. Allen, h. K., 2 Exch. 15. 4th dist., Oct. 1870, at Canton, 1 Abb. ' Bnfer v. Allen, L. R., 2 Bxcli. 15 ; Forms, 486-89 ; Clark v. Cleveland, 6 Hodges v. Gallaqhan. 2 C. B N. S. 306, Hill, 344; Fay v. O'Neia, 36 N. Y. 13. 89 Eng. C. L. i» Bacon v. Toicnsend, 3 Code Rep. 51 ; 4 Brown v. Melntyre, 43 Barb. 844. Haupt v. PoUman, 16 Abb. 303, 1 ' Gildinri v. Eyre, 10 C. B. N. y. 593, Rob. 131. 100 Eng. C. L. " Burt v. Place, 4 Wend. 591 ; but ^ BfixU V. Mntllipws. L. R., 3 C. P. see Palmer v. Avery, 41 Barb. 290; 684 ; Dennehey •" Woodmm, 100 Mass. Dennehey v. Woodsnm, 100 Mass. 195. 195. "'^ MUler v. Deere, 3 Abb. 1 ; Palmer ''Brown. V. Lakcinan, 13 Gush. 483, v. Apery, 41 Barb. 290; see, also, 88 6 Hill. 347, note, 35 Wend. 573. Me. 533 ; but see Dennehey v. Woodsum, » 3 R. S. 738, § 54 ; 3 Edm. Stat. 100 Mass. 195. 753. OH. IV A.J COMPLAINT IN PAETICULAE CASES. 371 poration," but we tliink it will." In an action against an attorney for malicious prosecution it must be averred that his client had no just demand, that he knew that fact, and that he applied the law for some purpose of his own, or for some other ill purpose, although it is not necessary to aver or prove malice in the ordi- nary sense of the term ; any improper or sinister motive will be sufficient.' An infant is not liable for a malicious prosecution instituted by his guardian." Married woman.'' — A married woman who signs a promis- sory note as surety for her husband, and by its terms expressly charges her separate estate with the payment thereof, is liable thereon," but parol evidence of an agreement to charge her separate estate is not admissible to vary or add to an ordinary note signed by a married woman.' It has been held,' that the judgment against a married woman may be in the ordinary form for a certain sum of money, and that the complaint need not allege that she is a married woman," or has separate property,^ but we think the better practice is " to allege that she was a married woman when she executed the agreement, and to pray judgment in the language of the execution authorized " to be levied and collected against her from her separate property, and not otherwise. A married woman does not bind herself by an agreement to pay for nursing and taking care of a sick parent unless she expressly agree to charge her separate estate." But in Massa- chusetts it has been held she is liable for a coffin for her pauper father, for which she agreed to pay." ISTor is she liable for prop- erty fraudulently purchased by her husband, although it be used in building a house upon her real estate," unless being aware eto., 10 Escli. ' Yale v. Dedern, 23 N. T. 450, 18 351. id. 265 ; WUlard v. Eastham, 15 Gray, » Townsend's Slander & Libel, S 265, 328 ; Bibb v. Pope, 8 Am. L. Reg. N. S. Ang. & Ames Corp., §§ 382, 387 ; Whit- 490, Supreme Court Alabama. field V. South Eastern, etc., 1 Ell. Bl. * Gorn Exch. Bank v. Babcock, 43 & Ellis, 115, 96 Eng. C. L. N. Y. 613. « Stoekley v. Ilornidge, 8 C. & P. 11, « Hudson v. Huyler, 6 Abb. N. S. 34 Eng. C. L. 388 ; and see Hubert v. Fera, 99 Mass. * Burnliam y. Beaverns, 101 Mass. 198. 360. i» Baldvyin v. Kimmel, 1 Eob. 109. = See, ante. Husband and Wife, and " Code, § 387. references there given. "^ Manchester v. Sahler, 47 Barb. 155. « Corn Exeh. Bank v. Babcock, 42 '^ Gordon v. Dix, 106 Mass. 305. N. T. 613, reversing 8 Abb. 246 ; " Corning v. Levyis, 36 How. 435, 54 V. Wilson, 9 Wallace, 108. Barb. 51. 372 COMPLAINT IX PARTICULAR CASES. [CH. IT A. that it was purclaased by the husband under a representation that he owned the real estate she promise to pay ; ' but she is liable for the fraud of her husband if he be acting as her agent, professedly in her behalf, though she do not know of the fraud, if she retain its proceeds." A complaint against a married woman to recover for services rendered in her separate business must allege that such business was carried on in this State or in some State having a similar law." The executors of a married woman having a life estate in premises are not liable upon her covenants for quiet enjoyment for ten years, she dying before that time.' A married woman is not liable for a supper ordered for a daughter about to be married although she expressly agree to pay for iV A complaint which seeks to charge a married woman, under the statute, on a debt contracted by her as agent for her husband, for articles for the support of herself and children, is not good if it charge them to have been procured for herself and family, and the action should be against the wife only." And, it seems, the complaint should aver that judgment has been obtained against the husband, and could not be collected by due course of law.' A married woman is liable for negligence by her servant em- ployed in her separate business.' So for the payment of the amount due upon a mortgage on property purchased by her, which she assumed to pay as a part of the purchase-money," and for the rent of a store hired bj^ her,'" she being, it seems, estopped by her assertion that she hired it for her separate business." A married woman, having a contingent right of dower, can recover the amount a mortgagee promises to pay her, provided she would ' Mattice v. LilUe, 24 How. 264 ; ' Valentine v. Lloyd, 4 Abb. N. S. Corning v. Lewix, 36 \d. 4:30 ; but see 373. See Smith v, Allen, 1 Lans. 101 ; Fairbanks v. MotJierseU, 41 id. 374. Laharee v. Colbi/, 99 Mass. 559. ' Graves v. Spier. 58 Barb. 349. « ffiiu^.g y. Lent, 3 Abb. N. S. 455. ^Arnold V. JJcrnnrd.S Abb. N. S. ^ Flinn v. Poirers, 36 How. 289, 116; Waldron y. Ritchings, d id, 359. Moak's note to Clarke's Cli., p. 400, ed. ■• Goiildcy V. Ghamherlaiii. 38 How. 1869. 483, but see cases cited in ^Nioak's notes '" Coster v. Isaacs, 1 Rob. 176. to Clarke's Ch„ p. 400, ed. 1869. " Coster v. Ismies, 1 Rob. 176, but see » )Vhite V. Stitri/, 43 Barb. 124, 38 note to Wriglit v. Leonard, 11 C. B. How. 173 ; Manchester v. Sahler, 47 N". !-!. 369, 103, Eno-. C. L, ; Holling- Barb. 155. dale v, Lloyd, 3 Mees. & Wels. 416 ; « Valentine v. Lloyd, 4 Abb. N. S. Ooidding v. Damdson, 36 N. T. 604, 35 371, and see Smith v. Allen, 1 Lans. How. 483. 101 ; Labaree v. Colby, 99 Mass. 559. CH. IV A.J COMPLAINT IK PAETIOULAK CASES. 373 leave the premises, her husband having absconded.' A married woman is liable for converting to her ov^n use wearing apparel stolen from the plaintiff", and sold and delivered to her by the thief, in her husband's absence. ' Marshaling assets.' — Where a partner mortgaged his indi- vidual property to secure a firm debt, and, after devising the mort- gaged property, died, held, the firm assets were primarily liable to satisfy the mortgage, notwithstanding the statute, which declares that if property subject to mortgage be devised, the devisee, and not the executor, shall pay the same.' The owner of property cannot, after conveying it even to a volunteer, subject it to the burden of marshaling for the benefit of other real estate subse- quently conveyed ;° nor will the court marshal assets in favor of a bequest for charitable purposes." Master and servant.' — An undertaker, employed to furnish carriages for a funeral, is not liable for the negligence of the driver of a carriage hired by him.' A master is not liable to his servant for injuries sustained by the latter while using machinery, by reason of its imperfect construction, in the employ of the for- mer, where the servant had the same means of knowledge of its safety as the master, and nothing occurred at or before the acci- dent to indicate any such damages, such as demanded or suggested precautions which were omitted ;° but he is liable for defects in the building in which the ser^dces are rendered, which he knew ' Hart T. Toung. 1 Lans. 417. ^ DoVpMn v. Aylward, L. E., 4 H. L. ' Heckle v. lyarvey, 101 Mass. 344. 501-3. 'Upon the subject, generally, see ^ FoyT.Foy,\Oo-s.'sCh.\Q'i\ West's 1 Story's Jur., §^ 638-645 ; Willard's notes to Attorney-General r. Jfoor, Bq. Jur., Smitli's Man. Eq. 384, 291, West's Rep. 105 n. 355 (1st Am. ed.), Adams's Eq. 271-7, ' Upon the subject, generally, see marff. pp. ; Eq. Draftsman, 213, note ; Selw. Nisi Prius, Smith's Mast, and Lloyd & Gould, 266-8, note, Banks's Serv., Reeve's Dom. Rel., Addison on ed. ; Kerr on Inj. 69, 70 ; Eng. ed. Mac Cont., Addison on Torts, Austin's Jur., Naughten's Select Cases, 89, 7«fi!C(7.^. ; Bl. Com., Boiiv. Inst., Broom's Com., Williams's note to Morris v. Bank of Broom's Com. on Com. Law, Chitty on England, Talb. Rep. 220 ; West's note Cont., Coweu's Tr. (Kiugsley's ed.), to Attorney-General r. ifoore, West's Estee's PI., Hilliard on Torts, Ililliard Rep. 105 ; Dunlap's note to Jfarguis on Remedy for Torts, Kent's Com., V. Cnnningliam, 3 Russ. 300, Banks's Noyes's Max. 109-111 (Munsell's ed.), ed. ; Patterson v. Scott, 1 De Gex, McN. Parsons on Cont., 1 Conw. Rob. Pr., 3 & Gord. 531 ; Moak's notes to Clarke's id., 4 id., 5 id., 6 id., Sedg. Dam., Shear. Ch. 7, 302, ed. 1869 ; Hilliard on Inj., & Redf. Neg., Smith's Man. C. L., 1 Conw. Rob. Pr., 4 Steph. Com. 42, Steph. Com.,"Wait's Law and Pr. note; Wat. Eden on Inj. « Boniface v. Se/i/ea, 36 How. 457. * .Robinson v. Robinson, 1 Lans. 117. ' Loonam v. Brockicay, 3 Rob. 74, 28 How. 473. 374 COMPLAINT IJSr PARTICULAR CASES. [CH. IV A. or ought to have known;' so for not providing stops in a mine, in consequence of which a miner is lulled f so for negligently allowing a wheel to be started, whereby a workman is injured. ° A master is liable for injuries to employees arising from per- sonal neglect or from the want of ordinary care and precaution on the part of the master in the selection of employees, appliances and machinery ;■■ otherwise as to the ordinary risks of the business the servant engages in.'' When the statute requires machinery to be fenced, and, while it is so protected, a servant enters the employment of a master, who suifers it to go to decay, after com- plaint by the servant, and promise to repair it, the master is liable." A master is liable for the act of his servant — an omnibus driver — in driving an omnibus across the street, to prevent another from passing, although he have been expressly instructed not to do so.' One who lends another a shed, to paint a sign in, cannot recover if a carpenter, employed by the bailee, light his pipe and throw the match into a pile of shavings, whereby the shed is burned.' Some bales of cotton were insecurely pUed in a ware- house by cotton-porters, acting under the control of the warehouse keeper, but in the employ of defendant, a cotton merchant, to whom the bales belonged. A few days after, plaintiff, being in the warehouse to examine other bales, was injured by the fall of one of defendant's bales. Held, he was not liable for the injury." One who erects a building by contract, and employs a clerk of the works to superintend the erection, is not liable for injury occas- ioned to a workman in the building, by reason of its negligent construction, unless he personally interfered or negligently ap- pointed an incompetent clerk of the works, with knowledge of his incompetency." If a ship is proceeding to sea under charge of a pilot, the owners, in order to exonerate themselves from liability for an injury to another vessel, must show that it was occasioned ' Ryan v. Fowler, 24 N. Y. 410. ' Holmes v. Clarice, 6 Hurl. & Norm. ' Watting v. Oastler, L. B., 6 Exch. 349, 3 Am. Law Reg. N. S. 107. 73. ■" Limpii.i V. London, etc., 1 Hurl. & 3 Wailing v. Oastter, L. R., 6 Exch. Colt. 526. 73. " Williams v. Jones, 3 Hurl. & Colt. ■» Faulkner v. Erie, 49 Barb. 327 ; 256, 603. Anderson v. iV. J., etc., 7 Rob. 611. See. ' Murphy v. GarralU, 3 Hurl. & Colt, note, 3 Am. Rep. 147. 463. ' Owen V. N. T., etc., 1 Lans. 108. '" Brown v. The Accrington, etc., 3 See note, 3 Am. Rep. 147. Hurl. & Colt. 511. CH. IV A.J COMPLAINT IN PARTICULAR CASES. 375 exolusweh/ by the pilot's default.' If a servant does, without special orders, an act of such a nature that he is justiiied in doing it, as between him and his master, without an express order, the master is liable for damages sustained by an individual, in con- sequence of the act having been done in an unskillful manner — as in taking down a liberty pole in a public park.^ One is not liable for his servant or child setting a dog on cattle, though stand- ing by, if he immediately recall the dog f nor is a parent liable for the act of a child in so doing." The owner of a steamboat is not liable for the willful act of the master in running her against and injuring another boat ;' nor is a master liable for the willful and malicious act of his servant while in his employment, such as shooting another, attempting to take possession of the master's premises.' A master is, however, liable for the willful act of a servant, if within the scope of his authority.' If one servant, contrary to orders, leave a truck standing in the street, which is run against by another cartman and thrown against a passer-by, he may recover against the owner of the truck so left.' One whose servant carelessly throws a keg out of a window, so that it injures a person in a passage-way below, is liable for such injury, even if his title in the way is such as not to render him respon- sible for any defect therein, and he may at any time revoke the permission by which the person injured is passing over it ;" or for throwing ice from a roof.'" The sei-vant of one of two railroad companies using the same depot may recover of the other for negligence of its servants ;" but a servant of a sub-contractor is a co-servant with a servant of the principal contractor.'^ The rule that a master is not liable for the negligence of a co-servant applies to one who is voluntarily aiding the master's laborers." A master is not ordinarily liable to one servant for the negligence of a co- ' Bodrigues v Melhuish, 10 Exch. ' Powell v. Beveney, 3 Cusli. 300 ; 110. Lynch v. Nurdin, 1 Ad. & Ell. N. S. 29, ^ Qilma/rtin v. The Mayor, 55 Barb. 41 Eng. C. L. 339. ' Corrigan v. Union, etc., 98 Mass. 3 Steele v. Smith, 8 B. D. Smith, 331. 577 ; Driscoll v. Newark, etc., 37 N. T * Tifft V. Tifft, 4 Denio, 175. 637. ' Sichmond, etc. v. VanderUlt, 1 Hill, i» Althorf v. Wolfe, 33 N. T. 355. 480. " Warhurton v. Great Weatern,'L.'R., « Frazer v. Freeman, 43 N. T. 566. 2 Bxch. 39. ' Weed V. Panama R. R. Co., 17 " Wirjgett v. Fox, 11 Exch. 833. N. T. 363 ; Althorf v. Wolfe, 33 id. " Degg v. Midland, 1 Hurl. & Norm. 355. 773. 376 COMPLAINT IN PAETICULAR CASES. [CH. IV A. servant.' Plaintiff hired laborers to make a crop on his farm, under a contract, by which the laborers were to have one-third of the crop for their services, the plaintiff retaining two-thirds for himself. In June one of the laborers was shot and disabled for several weeks, in consequence of which the crop was considerably less than it would have been. Held, that plaintiff had sustained no legal injury which gave him a right of action against the party who inflicted the wound. The common law gives the master no right of action against a third person for an injury inflicted upon his servant, causing loss of service, except where the servant is a menial one." Milk. — An action for fraudulently adulterating milk maybe brought in the name of the owner of a cheese-manufactory and its partrons, where the cheese is to be divided in proportion to the quantity of milk furnished by each f and so by the treasurer of such association." Mistake.' — It has been held that in pleading a mistake, omit- ting to allege that it was mutual^ renders the pleading invalid ; ° but this doctrine should be accepted with the qualiflcation that there must be no fraud on the part of the party against whom the reformation is sought.' As a rule, the mistake must be shown to be one of fact and not of law ; ° but, if a party, acting in ignorance of a plain and settled rule of law, is induced to give up a portion of his indisputable property to another under the name of a com- promise, a court of equity will relieve him from his mistake.' A ' Lovegrove v. London, etc., 16 C. B. liard's Bern, for Torts, Kent's Com., N. S. 669, 111 Bng. C. L., and see cases Kerr on Inj., Parson's on Cont., 2 Conw. cited, 698, note ; Bearle v. Lindsay, 11 Bob. Prac.,4 id., 5 id., 6 id., Selwyn's C. B. N. S. 429, 103 Eng. C. L. • N. P., Smith's Man. C. L., Smith's Man. "^ Burgess v Carpenter, 2 So. Car. Bq., Sto. Eq. Jur., Taylor's Ev., Wait's N. S. (Richardson) 7. Law and Prac, Washb. on Eeal. Est., ^ Thompson v. Howe, 46 Barb. 387 ; Willard's Eq. Jnr., Waterman's ed. on 6 Edm. St. 300-301 ; id 478. Inj. *Bridenbe7cker t. Soard, 33 How. 389. « Kreitz v. M-ost, 5 Abb. N. S. 277 ; ' Actions for the reformation of con- Mills v. Leicis, 37 How. 418, 55 Barb. tracts on the ground of mistake are 179 ; Story v. Conger, 36 N. Y. 673 . treated of by the editor of the present Midland yr. Johnson, 6 House Lords, 798 ; edition in a note to Fishell v. Bell, HaioMns v. Jackson, 3 McN. & Gord. Clarke's Ch. 43, ma/rg. pp.; and Hatn- 372. lin y. McCahill, id. 252,marg pp.; see ' Moak's notes to Clarke's Ch. 42,. also Kerr on Frauds and Mistaltes, marg. pp., and cases cited ; Story v. Adams's Eq., Addison on Cont., Bl. Conger, 36 N. Y. 673. Com.,Bouv. Inst., Broom's Com., Chitty * Moak's note supra. on Cont., Daniell's Chy. Pr., Edw. on " Dunlap's note to AlwoodY. , Bailm., Estee's PL, Fry on Spec. Perf., 5 Russ. 150, Banks's ed. and cases cited ; Greenl. on Ev., Hilliard on Torts., Hil- ^^aylor v. Winch, 1 Sim. & Stu. 564. CH. IV A.J COMPLAINT IN PAETICULAE CASES. 377 concealment or misstatement of the law may operate as a fraud, from whicli the party should be relieved.' If a deed complies with a written agreement between the parties, the grantee, who claims a mistake in the deed, must allege and prove that the written agreement was also the result of mistake." Where the parties conti'acted for the sale and purchase of a lot 120 feet in depth, supposing a stable in rear was thereon, but the 120 feet did not cover the stable, a reformation of the deed was refused, as the quantity agreed to be was in fact conveyed.' Where persons, by mistake, pay more than their indebtedness to the debtor, to the sheriff holding an attachment against him, they cannot recover hack the same from the sheriff', or the creditor, after the sheriff has paid it over to him.'' Where there was a mistake of facts, which has been honestly acted upon by the other party and he will be prejudiced without redress, by being compelled to rectify it, he will not be obliged to do so.' Otherwise, if he will not be injured, but will have the same remedies, though the party seeking freedom from being guilty of negligence." The defendant, an executrix, being entitled to a sum of money lent by the testator, and secured to him by bond and mortgage, applied to the debtor for payment. He referred her to a bank which had purchased the mortgaged property subject to the mortgage. The bank paid the money. It turned out that the testator, by a subsequent will, which had been suppressed by the family of the debtor, that the debtor had no title to the property and had conveyed none to the bank ; held, the bank could not recover it back. The defendant simply received her debt, and if the bank saw fit to pay it upon an invalid arrangement between themselves and the debtor the defendant was not in fault, and had nothing to do with the consideration which moved the bank to pay.' It seems the bank could have recovered it of the debtor.' When a debtor transfers to his creditor the promissory note of a ' Uoolce Y. Hathan, 16 Barb. 343. ' JJnion, eta. v. Sixth, etc., 1 Lansing, ° Christianson v. Linford, 3 Rob. 215. 13, and see Kingston Bank v. Eltinge, ■' White V. Williams, 48 Barb. 223. 40 N. Y. 391 ; Kelly v. Solari, 9 Meea. ■i Duncan v. Berlin, 5 Rob. 457. & Wels. 54. * Oillespic V. Carpenter, 35 How. 203, ' Aiken v. Short, 1 Hurl. & Norm. 1 Rob. 65, aff'd in Court of Appeals, 209. June, 1868, 35 How. 643, but see King ' JJnion, etc. v. Sixth, etc., 1 Lans. 14 sto-n Bank v. Eltinge, 40 N. Y. 391 ; Newall V. Tomlinson, L. R., 6 C. P. 405. 48 378 COMPLAINT IN PAKTICULAR CASES. [CH. IV A. third person, in full payment and discharge of the debt, if the maker be at the time of the transfer insolvent, and that fact be unknown to both parties, it is a case of mutual mistake, and the creditor may recover.' Where a party purchased some hay by measurement, supposing it to contain a ton, but it in fact contained much less, held, he could recover back the amount paid for the excess.'' In an action to recover back money paid by mistake of fact, it is no defense that the plaintiff had, within his reach, the means of ascertaining the truth, or that he omitted to use vigilance and care by which the mistake would have been avoided ;" as where the plaintiif, in a subsequent execution, assented to the plaintiif in a prior one, receiving the amount of sales on a levy under the second execu- tion, supposing the time to levy on the first had not expired." A party purchasing a title, believed by himself and his grantor to be doubtful, cannot recover back the amount paid by showing that it was in fact void ;'* otherwise, if it were believed to be good, but the parties were mistaken as to the fact." Mere forgetfulness is a mistake, and if a party so pays money a second time he may recover it back ;" and so over-payments upon a mortgage.' If the minds of the parties do not meet there is no mistake of facts but a failure to agree upon a contract, and a contract so entered into will not be reformed." One who has paid money under a charge that he was the father of a bastard child may recover it back if the alleged niother were not in fact pregnant." Where the holder of a note induces an indorser to believe it has been protested, when it has not, the indorser, if he has paid the note, may recover back the amount so paid." It has been held that if one mistakenly suppose part of a note has been paid, and sue for and recover the balance, he may, on discovery of the mis- take, recover the balance, simply counting, in his complaint, upon ' Roberts v. Fisher , 43 N. Y. 159. Blc. v. Bank of Albany, 1 Hill. 287 ; ' Seott V. Warner, 3 Lans. 49. Waite v. Leggett, 8 Cow. 195 ; Lake v. ^ Kingston Bank v. Eltinge, 40 N. Artisans' Bank, 1 Trans. App. 73, 3 Y. 391 ; The Union, etc. v. The Sixth, Abb. N. S. 213. etc., 43 id. 453. ' Thompson v. Otis, 43 Barb. 461. * Kingston Bank v. Eltinge, 40 N. ' New York, etc. v. Northwestern, Y. 391. etc., 10 Abb. 35. « Granger v. Olcott, 1 Lang. 169. ' Rheel v. Hicks, 35 N. Y. 289. ' Kelly V. Solari, 9 Mees. & Welsb. '» Lake v. Artisans' Bank, 1 Trans. 54; Lucas v. Worsinck. 1 Moody & App. 71, 3 Abb. N. S. 310. Bob. 393, 1 Story's Eq. Jur.,§140; Ganal CH. IV A.J COMPLAINT IN PAETICULAK CASES. 379 the balance in fact unpaid ; ' but this is only a county court case, and however equitable it may seem, it is doubtful whether a party can thus split up a single cause of action, and thus recover the balance in an action at law. Either party to au agreement founded on mistake may come to equity for relief.^ If the plan of property sold have misled the purchaser, a specific performance will not be decreed." K. bill of exchange was drawn upon the plaintiff by his correspondent, against a bill of lading, which was sent through the defendants — a bank — for presenta- tion and collection. The bank presented the bill to plaintiff with this memorandum : " The bank holds the bill of lading and policy for two hundred and fifty-one bales of cotton for William Cum- mings." Plaintiff accepted the bill without asking to see the bill of lading, and afterward retired it before it was due, paid the money and received the bill of lading, which proved to be a for- gery. Held, the m.emorandum did not amount to a guaranty that the so-called bill of lading was genuine, and that plaintiff had no equity to recover back the money.* Mr. Austin, one of the ablest of writers, says : ° "In the case of money paid and received by mistake, it is necessary to distinguish." If the money was received iona fide., it is surely expedient that a demand should precede the action ; for, until the debtor is ap- prised of the mistake, it is impossible to say that he has broken, intentionally or l>y negligence, his obligation to return the money. If the money was received mala fide, the act of receiving the money was in itself an inju7'y — an injury analogous to unlawful taking. The only difference between the cases lies in the means. In the one case I take the goods of another without the consent of the owner ; in the other case I take the goods with his consent, but by reason of an error in which he is, and of which I avail myself by suppressing the truth. Here, therefore, the debtor is guilty of an injury from the very outset, and no demand is neces- ' Conhlin v. Meld, 37 How. 455. of acting as agents, sold a note as their ' Cooper Y. PMVbs, L. K.,3 H. L. 149. own, and Sherman v. Johnson, 56 Barb. * Denny v. Hancock, L. R., 6 Cli. 60, where the defendants were guilty App. 1. of fraudulent representations on the ^ Leather v. Simpson, L. R., 11 Bq. sale of an account. 398 ; but see Fake v. Smith, 7 Abb. « Austin's Jur. (3d ed.) 488. N". S. 107, where the defendants, instead 380 COMPLAINT IN PAETIC0LAE, CASES. [CH. IV A. sary as a basis for the action." And this doctrine has recently been sanctioned, in the exchequer chamber, by two very able judges.' Modified contract.^ — Until breach a contract under seal can- not be discharged or modified by parol, and the action should be upon the original and not the modified conti'act,' except so far as the modification may relate to the time of performance merely ;' but a new contract may be averred and proved to have been accepted in satisfaction of a prior sealed agreement and not in the mere performance of it.'' Money had and received." — This action lies to recover money in the hands of one person equitably belonging to another,' as where one has received the money of another through the inter- vention of a forgery by a third person, although he who received the money ,did so in good faith, and without knowledge thereof;' so by a stockholder, whose stock has been sold under a forged power of attorney, against the party who holds the proceeds of the sale ;° by the owner of a draft issued by the government for his bounty or back pay, against one who received it through a forged or unauthorized indorsement ;'° by the owner of a draft against one who, as agent for a party who acquired his title thereto under a forged indorsement, collected the same without disclosing his agency, and paid over the proceeds of such collection to his principal." An action will not lie by one claimant of money due under a contract with the government against another, when the same is paid by an ofiicer thereof, to the claimant, with notice of the 1 Maktin, B., and Bramwbll, B., in §§ 307-316, 1 Wait's Law and Pr. 706 Freeman v. Jeffries, 1,. B.., 4 Excli. 6t sei?., 1 Estee's PI. & Pr. 464, 476. 199, 200. ■■ 1 Chitty's PI. 351, note ; Buel v. * As to form of complaint see 1 Bougliton, 2 Den. 91. But see Butter- Estee's PI. & Prac. 624. worth v. Qould, 41 N. T. 463, as to " Kuhn v. Stevens, 36 How. 375 ; qualification. Glough V. Murray, 3 Rob. lH; DeLa » 1 Chitty's PI. 352. Groix V. Bulkley, 13 Wend. 71 ; Lain- ' Marsh v. Keating, 1 Bing. (N. C.) renee v. Woods. 4 Bosw. 362, 363 ; 198, 27 Eng. C. L. Rep. Allen V. Jaquish, 21 Wend. 628, 5 "> IloUsingerx. National, etc., STRow. Conw. Rob. Prac. 740-758. 203, affirmed by Court of Appeals, Feb. ' lough V. Murray, 3 Rob. 7; 14, 1871, 8 Alb. Law Jour. 305. But see Meehan v. Williams, 36 How. 73. Osby v. Conant, 5 Lans. 310. ' Olough V. Murray, 3 Rob. 7. " Holt v. Ross, 4 Alb. Law Jour. 11; 'Upon the subject, generally, see Ganal Bank v. Bank of Albany,! 'B.iM, 3 Conw. Rob. Prac. 449-488, 1 Chit. PI. 387 ; Schaffer v. McKee, 19 Ohio St. 351 et seq., 1 Cow. Tr. (Kingsley's ed.) 526. CH. IV A.J COMPLAINT IN PAUTICULAE CASES. 381 claims of both, notwithstanding the plaintiff proves himself to have been entitled, as between himself and the defendant, to have received such moneys from the government ;' and so in all cases v»'here two persons claiming adversely to each other apply for payment to the debtor, and one of them is recognized as the creditor, and paid to the exclusion of the other." The distinction between the latter cases and those where one receives the money of another through the means of a forged indorsement is appar- ent. In the one case the party receiving the money receives it as his own, claiming under an independent title, and without in any way claiming through the other party ; in the case of a forged indorsement the person receiving the money necessarily does so, admitting that it originally belonged to the payee, and that he is receiving it under or by virtue of his rights. Where one, by mistake, receives plaintiff's wheat, sells it as agent for another, and accounts therefor to his principal, he is, nevertheless, liable to the plaintiff ;° so, generally, the action lies to recover back money paid by a mistake of fact ; as by a subsequent judgment creditor against a prior one to recover moneys paid by the sheriff with plaintiff's assent, he mistakenly supposing defendant's exe- cution had not expired at the time of making the levy.* The right to the salary or emoluments of an office depends upon the performance of the duties thereof; one who was deprived of the right to perform them by an officer de facto cannot maintain an action against the government for the salary, on the ground that the payment thereof to the de facto incumbent was wrong- ful." It has been repeatedly held, that an officer de jure may ' Butterworth v. Qould. 41 N. T. 450. should tave been paid to him. In one ^Patrick -v. MetccUf, 37 IST. T. .332; case the debtor decided for himself , and Murphy v. Ball, 38 Barb. 263. at his peril, who was the creditor; in the ^ Gohh V. Dows, 10 N. Y. 335. other the creditors themselves decided " Kingston Bank v. Eltinge, 40 N. it for him, but did so under a mistake Y. 391. This case, and BiitterwortTi v. of facts, which, as between themselves, Qould, supra, are apparently but not rendered the consent legally invalid, really, we thinl?;, in conflict. In But- and which left the money subject to terworth v. Oould the creditor's remedy the plaintiff's equitable rights thereto, against the debtor remained uuaiiected ^ Smith v. Mayor, eta., 37 N. Y. 518. by the payment. In Kingston Bank This case must be held to overrule V. Eltinge, although defendant claimed People v. Brennan, 30 How. 417 ; 1 Abb. the money as his own under an inde- N". S. 184, although nothing is said pendent title, the plaintiff's assent to therein of the latter. See, also, Mont- the sheriff paying the money to defend- gomery v. United States, 5 Court of ant precluded him from maintaining Claims Rep, 93, where an officer was an action against the sheriif to recover dismissed and reinstated, what was really his own, and what 382 COMPLAINT IN PARTICULAR CASES. [CH. IV A. maintain an action against a de facto incumbent receiving the salary or emoluments of an office ;' but this, under the recent cases, may be doubted, unless the courts, to accomplish an act of seeming justice, are able to make a distinction more subtle than now occurs to us, between such a case and that of an ordinary creditor of the government, who receives payment of a demand under an independent claim of right thereto. If it be said tiiat an officer de jure may practically be deprived of the emoluments of an office, the answer is, that he has no legal claim thereto, except where he acquires it by a discharge of the duties thereof.^ An agent who receives the note of a debtor to his principal, and sells the same for less than its face, is liable to his principal, in an action for money had and received, for the face of the note. He will be treated as having made himself answerable to his principal for the full amount he ought to have received from the debtor.' Money paid by an agent under a mistake as to the legal obliga- tion of his principal may be recovered back by the principal, in an action for money had and received ; as, for instance, where a government collector improvidently and mistakenly pays a fish- ing bounty to a vessel which has not been enrolled in a manner entitling her to the bounty ;* so where the principal himself so pays the money,^ or where a person who is not entitled to a pen- sion fraudulently obtains one, and the money is received by another with notice thereof." Money paid to defendant, and for his nse.' — One who refuses to perform a contract, on the ground that it is void by the statute of frauds, cannot recover what he has paid thereon, if the other party be ready and willing to perform.' If the vendor have not refused to perform, the vendee cannot recover back what he paid upon the contract without averring and showing that the vendee's title is absolutely bad. It is not sufficient to show it 1 Piatt V. Btout, 14 Abb. 178, 1 Chit- « JJ. 8. v. InlwMtants, etc., Davies, ty's PI. 100 and cases cited ; BrigMy's 154, Ware, district jvidge. Lead. Gas. on Elections 605, 610 ; May- ' Upon tlie subject, generally, see 3 fidd V. Moore, 5 Am. Rep. 53, 53 111. 438. Conw. Rob. Prac. 434, et seq., 1 Estee's '' Smith Y. Mayor, etc., 37 N. T. 518. PI. & Prac. 481, et seq., 1 Cow. Tr. 3 Allen V. Brown, 51 Barb. 86 ; Van (Kingsley's ed.) §8 31 7-880 6, 1 Wait's Rensselaer v. Morris, 1 Paige, 13; Law and Prac. 698, e< sej. Beardsley v. Root, 11 Johns. 464. ' Moak's note to Clarke's Ch. 360, ■■ U. S. V. Bartlett, Davies, 9, Ware, marg. p., and cases cited ; see also district judge. Simon v. Kaliske,6 Abb. N. S. 335. ''Pitcher v. The Turin, etc., 10 Barb. 337. OH. IT A.J COMPLAINT IN PAETICULAK OASES. 383 doubtful.' The rule is different in an action at law, from a suit in equity, by the vendor, to compel the specific performance of a contract to purchase.' One who pays money is not bound to show he paid it in the discharge of a liability, binding either on the plaintiff or on the defendant ; it is enough to show that it was paid in accordance with an uncountermanded authority, or in compliance with an express or implied request,'' as an usurious note ;" or an agreement void by the statute of frauds ;' or on bets which were illegal ;' the principal can only prevent the surety who pays an usu- rious debt from recovering, on the ground that he expressly for- bade his doing so before the payment was made.° It has been held that money paid to another for an illegal pur- pose, as for betting, cannot be recovered back, though it be never used for such purpose f but after a retrial of the case it was held, on appeal, that if the money was not, in fact, used according to directions, or if the plaintiff had countermanded his instructions before it was so used, it might be recovered back ;' so it has been held in Massachusetts, that an indorser who pays a note before it is protested, and he charged as indorser, cannot recover the money so paid, on the ground that the payment is gratuitous," but the court did not notice a prior decision in that State to the contrary," and the English courts have held the reverse." The rule, how- ever, only enables the surety to recover of a principal debtor, on the ground of an implied request, until countermand, to pay the obligation. It does not apply against a surety. Where sureties in a bail bond had the right to surrender their principal, before suit brought against them, and one of them being sued before the other paid the bond, held, he -^vas not entitled to contribution ; that he had paid the bond before liis co-surety became fixed, and ' O'Reilly v. King, 3 Rob. 587. " Bust v. Morse, 3 Hill, 656, 657, Pit- ' Alexander v. Vane, 1 Mees. & Wels. man's Pr. and Surety, 130. 511 ; Brittainv. Lloyd, U id. 762; Ford ^Knight v. Cambers, 15 C. B. 561, V. Keith, 1 Mass. 139 ; Shaw v. Loud, 80 Eng. C. L. 13 id. 447 ; Hassinger v. Solms, 5 Serg. « Ford v. Keith, 1 Mass. 139, 143. & Rawle, 4, 1 Cromp. & Mees. 480, note ' Morgan v. Groff, 5 Denio, 864. (Johnson's ed.) ; Armstrong v. Toler, 11 '' Morgan v. Oroff, 4 Barb. 534. Wheat. 358 ; Bullard v. Raynor, 80 N. ' Bachelor v. Priest, 13 Pick. 399. Y 197 ; see Rust v. Morse, 3 Hill, 650, " Ellsworth v. Brewer, 11 Pick. 816. and Theob. Pr. and Surety, 178, and " Huntly v. Sanderson, 1 Cromp. & cases cited. Mees. 467. '' Curtis V. Leamtt, 17 Barb. 311 384 COMPLAINT IN PAKTICULAE CASES. [CH. IV A. had no right to thus deprive him of his right to surrender liie principah' In this case the co-surety was not, as will be readily seen, the principal debtor, and the law would not imply a i-equest to his co-surety to pay the inchoate obligation. Where a surety on a bill, after acceptance, paid it before it was demanded of the acceptor, and protested as against the drawer, it was held, he could not recover of the drawer, for as soon as it was accepted he was not the principal debtor, but a surety for the acceptor, and could only be made liable upon the bill after demand and protest.' Negligence/ — • Where the sailing-master of a yacht, contrary to orders from the owner, fired a gun left there with ammunition, it was held, the owner was not liable for an injury occurring from such firing, as it was no part of the sailing-master's duty to use or discharge the gun.* One who digs post-holes on his premises, along and contiguous to a highway, and leaves them open and unprotected, is liable to one who is injured by stepping into them in the night-time.' The owner of premises having a vault in front, imder a highway, is bound at his peril to provide such a covering for an opening into the vault that it will be as safe to pass over as if no such vault or opening had existed." If he lease such premises without providing a covering with secure fastenings for such opening, he is liable for injuries sustained by a passer-by, although the covering may have been removed or deranged by the tenant or a third person.' The owner of a building being erected by a contractor under a special agreement giving the latter the control of the works, is nevertheless liable if he, or the architect acting for him, give the contractor directions which, being negligently followed, result in injuries to a third person ; ' otherwise if he gave no directions." A railroad company is not liable for running over and cutting a hose used in putting out a > Skillin Y. Merrill, 16 Mass. 41. Keyes, 323 ; JSadley v. Taylor, L. R., 1 ^ Munroe v. Eaaton, 2 Johns. Cas. 75. C. P. 53 ; but see dornwell v. Met., etc., ' Upon the subject, generally, see 10 Bxcli. 771. Shear. & Redf. on Negligence, Sand, on ^ Ander.ion y. Dickie, 1 Rob. 238; Negligence, Camp, on Negligence, Add. Irma y. Wood, 4 id. 138, 147; Irvin v. on Torts, Hill, on Torts, Hill, on Reme- Fowler, 5 id. 482; Sexton v. Zett, 56 dif'S for Torts, Redf. on Railways, 4 Barb. 119. Conw. Rob. Prac. index, title Negli- '' Ander.wn y. Dirlie, 1 Rob. 238; gence, and titles referred to ; Tay. Ev., Trvin v. Wood, 4 id. 138, 147. Selwyn's N. P. s Heffernan v. Benkard, 1 Rob. 432. " Jirtnr/c V. ROTrin.i/, 4 Abb. N. S. 397, ^Potter y. Seymmir, 4 Bosw. 140; 5 Rob. 538. ' Oilbert v. Beach, 5 id. 445. ' Wright v. Saunders, 86 How. 136, 3 CH. IV A.J COMPLAINT IN PAETICULAK CASES. 385 fire in a burning building, althongh the engineer was repeatedly requested to stop, unless he was informed of the reason why he was requested to stop," and, it seems, even if he had been, the damages were too remote to have been the subject of an action." One who, in erecting a building, is guilty of negligence and want of skill in erecting its walls, is liable to one injured by their fall.' The owner of diseased horses, even if he has a right to keep them on his own premises, has no right to allow them, when afflicted with a contagious disease, to go at large or to water them at a public tank used for watering sound horses by other persons.* One who jumps off a street-car moving slowly is not necessarily guilty of negligence himself which will preclude a recovery;" otherwise if it be moving rapidly although the driver refuse to stop." But if a passenger attempt to get off. without any notice to those in charge of the car, and without their knowledge, or negligence in not knowing that he is doing so, the corpo- ration is not liable for injuries received by him through a fall occasioned by a sudden start of the car.' But one who attempts to cross a railway-track with sufficient time to do so before an approaching train will arrive is not guilty of negligence, be- cause there might be danger of his slipping or falling.' One, who without any assignable business is standing against a sta- tionary car, where he cannot be seen by those operating a train, and they back one down against such stationary car and run over him, is guilty of negligence which precludes a recovery ;° otherwise if he be legitimately engaged in unloading a car negligently backed against." A canal company is not liable ' MoU V. Hudson River, etc., 1 Bob. ' Mettlestadt v. Mnth, etc., 33 How. 585. 428, 4 Rob. 377 ; MulTiado v. Brooklyn, ^ Mott V. Mudson, eta., 1 Rob. 585. etc., 30 N. Y. 370 ; see Thrings v. ' Seabrook v. Seeker, 2 Rob. 291, 4 Central Park, etc., 7 Rob. 616. id. 344. = GHnnon v. Weio York, etc., 3 Rob. 25. ^ MiUs V. K T., etc., 2 Rob. 326, 41 ' Nichols v. Middlesex, etc., 106 Mass. N. Y. 619 ; but see cases cited in 463. Moak's Notes to Clarke's Ch., p. 351, » Baxter v. TJie Second, etc., 3 Rob. ed. 1869, and Cook v. Waring, 2 Hurl. 510, 30 How. 219. & Colt. 332, where it was held, the ' Lehey v. Hudson, etc.; 4 Rob. 204 ; owner of diseased sheep escaping upon Van Schaaick v. H. B. S. li., 48 the lands of another, was not liable N. Y. 527, for the killing of Mr. Van without proof of scienter. The case, Santvoord, the author of the present however, does not advert to the dis- work. tinction in the cases referred to by Mr. " Newson v. New York, etc., 29 N. Moak, that the sheep were trespassers Y. 383 ; Stinson v. Same, etc., 32 id. and the owner liable without knowl- 333. edge. 49 386 COMPLAINT IN PAETICTJLAE CASES. [CH. IV A, to one navigating its canal for an injury sustained by a rock which fell into the canal at a place where blasting was done a long time before ;' otherwise as to a canal superintendent guilty of negligencfi after knowledge of an obstruction to navigation/ or a contractor upon the canals under similar circumstances.' A traveler along a public highway, who carelessly injures a laborer engaged in clearing the track of a horse-railroad therein, is liable for such injury.* The owner of land is liable to those coming upon it at his invitation, express or implied, for an injury occasioned by its unsafe condition ;' otherwise as to one owning a bridge which fell without notice or knowledge of its unsafe condition.' So a railroad company, whose premises are unsafe, is liable to a pas- senger alighting after a train stops at or near a station.' So one who keeps a vault, so that with his knowledge filthy water habitually filt- ers into his neighbor's land, is liable for the injury thus caused f but one who uses his land in the ordinary manner, without willfulness or negligence, is not liable in damages, although mischief should thereby be occasioned to his neighbor." One wlio has machinery on exhibition in a public place is not liable if, during his absence, a small boy sets it in motion and is injured by it ;" but one who sells a child of tender years gunpowder or other dangerous materials, is liable for an injury occurring to the child by a careless use thereof." Otherwise, however, if the child's parents or guardians know he has it, and permit him to use it." So a military officer who negligently gives a command, in drUUng his subordinates, for them to snap their guns when pointed toward spectators, one ' Weitner v. President, etc., 4 Rob. OocMe v. L. & 8. E. B. R., h. R., 5 C. P. 338. 457, but see 6 Queen's Bench, 377. 2 Adsit v. Brady, 4 Hill. 630 ; Hioks « Ball v. iVj/e, 99 Mass. 582. V. Born, 9 Abb. N. S. 54. » Bylands v. Fletcher, L. R., 3 House " RoUnson v. Chamberlain, 34 N. T. of Lords, 330, 3 Exch. 353 (Johnson's 389 ; Hicks v. Born. 9 Abb. N. S. 54 ; Am. edition)^ affirming S. C. in Exch Fulton, etc. v. Baldwin, 37 IST. Y, 648. Chamber, L. R., 1 Exch. 365, revers- « Quirk V. Salt, 99 Mass. 164 ; Smith ing S. C. in Exch. 3 Hurl. & Colt. V. London, etc., L. R., 3 C. P. 336 ; but 773. see Wilkson v. Fairrie, 1 Hurl. & Colt. ^'' Mangan v. Atterton, L. R.,1 Exch, 683 ; Southcote v. Stanley, i. Hurl. & 239 ; Hughes v. McFie, 2 Hurl. & Colt, Norm. 347. 744. ^ Cai'leton v. Franconia, etc., 99 ^^ Garter v. Towne, 98 Mass. 567; Mass. 316 ; Indermaur v. Barnes, L. Addison on Torts, 367 (3d Eng. edi- R., 2 C. P. 311, Exch. Chamber. tion) ; Bixon v. BeU, 5 Maule & Selw. 6 Gautret v. Egerton, L. R., 2 C. P. 198. 371. " Carter v. Towne, 103 Mass. 507. ' Halhert v. Nno York, etc., 40 N. Y. 145, L. R,, 3 Exch. 150, 4 id. 117; OH. IV A.] COMPLAINT IN PARTICULAR CASES. 387 of the guns aecidently proving to be loaded ;' although not liable criminally.' If the servants of a railroad company negligently shut the door of one of its cars upon the hand of a passenger, the company is hable for an injury thus inflicted.' A railway company which is guilty of negligence in not providing proper drains or culverts for water is liable for an injury resulting therefrom." And so, although the injury result from the neglect of persons whose duty it was to keep the outlet of certain dimensions, in consequence of which neglect the water was penned back, although it was an unusual freshet, if such unusual freshets occur once in every two or three' years." The owner of a ship is liable for an injury to goods resulting from a collision, the result of gross carelessness of the master or crew, although the bill of lading, except " accidents or damages of the seas, rivers and steam navigation, of whatever kind or nature soever.'" It is not necessary that one charged with a duty in case of knowledge of certain facts should actually know of them in order to render hioa liable for negligence ; he is equally responsible if he negligently remain ignorant of the causes of mischief, and so leave them unremedied ;' notice may be inferred by its continuance a considerable time. ° When a ves- sel sinks in a navigable river, the owner, so long as he retains the possession and control of it, is bound to take due precautions to prevent injury to other vessels by their running against it ;° otherwise if he have abandoned it entirely." A municipal cor- poration, employing workmen to lay down gas pipes, is liable for their negligence." So it is liable for the condition of its streets if it have assented to the act and authorized its doing by any one."'' ' Castle v. Buryea, 33 Barb. 480 ; 3 Ruckman, 10 Bosw. 30, 16 Abb. 341, Keyes, 169, Addison on Torts (3d Eng. 37 N. Y. 568. ed.), 367 ; Weamr v. Ward, Hob. 134. ' Daveivport y. Euckman, 10 Bosw. = Reg. V. Hutchinson, 9 Cox's Or. Cas. 30, 37 N. Y. 368 ; Shear. & Redf. Neg. 555. §§ 148, 407 ; Goodnough v. City of Osh- ' FordTiam v. London, etc., L. R., 3 kosh, 34 Wis. 549, 1 Am. Rep. 303. C. P. 368. 9 White v. Crisp, 10 Exch. 313. ^Bagnall y. London, etc., 1 Hurl. & i" King v. Walts, 3 Esp. 675 ; Brown Colt. 544. V. Mallett, 5 C. B. 619, 57 Eng. C. L. ; ' Harrison v. Great, etc., 3 Hurl. & . White v. Crisp, 10 Excb. 323. Colt. 331. " Bcott Y. Mayor, 1 Hurl. & Norm. 59, « Lloyd Y. The General, etc., 3 Hurl. Shear. & Redf. Neg., §§ 135-140. & Colt 383 ; Arctic, etc., v. Austin, 54 " Shear. & Redf. Neg. S 147 ; but see Barb. 559. Dorlin v. City of Brooklyn, 46 Barb. 'jlf«r«ey, ete.,v. (?j6i>s,BHurl. &Colt. 604; Wendell y. Mayor, 39 id. 339, 1035; S. C.,11 House of Lords' Cas. 4 Keyes, 361 ; Siorrs v. City of Utica, 686, L. R., 1 H. L. 93 ; Davenport v. 17 N. Y. 104 ; Clarke v. City of Lock- 388 COMPLAINT IN PARTICULAB CASES. [CH. IV A. The owner of a lot has a right to nse steam-power in his busi- ness ; and if, while so doing, his neighbor be injured by an explo- sion, he is not liable unless he was guilty of negligence contribu- ting to the injury.' Where there are two methods of doing an act, both of which are customary, the adoption of one under certain circumstances, if more dangerous than the other, may of itself be negligence." Persons performing a public duty gratuitously, and being per- sonally guilty of no negligence, are responsible for an injury to an individual through the negligence of workmen employed under them." One who employs a carrier to transport a dangerous material, which may injure another, is liable for any injury to the carrier or his servants arising from his omission to disclose the nature of the material.* The mere fact that one goes out to try a new horse is not such negligence as will render him liable for an injury inflicted by the horse running away.° "Where one erects a building, and admits spectators, for hire, to view a public exhibition, he is liable if it was negligently constructed, although he was not aware of the fact." If two railway companies use the same track, each is liable for an injury to a passenger arising from their common negligence or the negligence of either.' If the servants of a railroad com- pany cut grass and let it lie and dry along the track, in conse- quence of which it is set on fire, the company is liable for an injury resulting therefrom." If one order goods in a fictitious name, a carrier is not guilty of negligence if he deliver them to the person who in fact ordered them, he having previously taken them to the place designated, ' port, i^B&Th. 580; Greed y.Hartman,2Q * Fa/rrantY. Barnes, 11 C. B. N. S. N. Y. 593 ; Gilbert v. Beach, 5 Bosw. 445. 553, 108 Eng. C. L., Add. on Torts, 367 ' Losee v. Saratoga, etc., 43 How. (3d Eng. ed.). 385. ^ Hammaek' v. White, 11 C. B. N. S. 2 CUmland v. Spier, 16 C. B. N. S. 588, 108 Eng. C. L. 399, 111 Eng. C. L. ; Eicka v. Born, 9 » brands v. Oockrell, L. R., 5 Queen's Atb. N". S. 47, 43 N. Y. 47, 54 Barb. 173, Bencli, 184. 1 Lans. 81. ' Thomas v. Bhymney, etc., L. E., 5 • V. Webster, 12 0. B. N. S. Q. B. 336 ; afiBrmed, 6 id. 368 ; but 790, 104 Eng. C. L. ; Foreman v. Mayor, aee Mooney v. Hudson Ri-oer, etc., 5 L. R., 6 Q. B. 317-18 ; Mersey v. Gibbs, Rob. 548. L. R., 1 H. L. 98 ; HolUday v. The Ves- » Smith v. Tlie London, etc., L. R., 5 try, 11 C. B. N. S. 193, 103 Eng. C. L„ Com. PI. 98 ; affirmed, 6 id. 14. is substantially overruled by the above CH. IV A.J COMPLAINT IN PARTICULAR CASES. 389 but finding it closed.' A county clerk who fails to properly docket a judgment, so that the debtor sells his property, is not liable for the amount of the judgment, without averment and jproof that the purchaser had in fact no notice of the judgment!' Plaintiff led his horses, which were gentle, upon a ferry-boat, and left them for a moment unattended. The guard chain was not high enough to stop them, and the ferry company had no one to attend them ; the horses became frightened by the steam-whistle and jumped off the boat. Held, the company was liable, if the jury found, as a fact, that the decks were so slippery that plaintiff could not have stopped the horses if he had been at their heads or on his box,^ for " it was the duty of the ferry company to have proper and suitable guards and barriers on the boat for the security of the property thus carried, and to prevent damages from such casualties as it would naturally be exposed to, though there was ordinary care on the part of the traveler." ^ In an action for damages in consequence of negligence in failing to protest a draft, only nominal damages can be recovered, unless it be averred and proved that if due notice had been given, the plaintiff might have collected the amount or some part of it.' This is probably good law as to a draft, for the drawee has no claim against the payee thereon until acceptance, and retains a cause of action on the original indebtedness. It would not apply to an action for failing to pro- test a note, so as to charge an iudorser ; for the law presumes that every man is solvent." The law would presume the note could have been collected of the maker. The complaint in such a case should show loss from neglect to protest, by showing that the maker was insolvent, and that in consequence thereof the amount of the note was lost to the plaintiff. In such case the negligent agent is not liable for the costs of an unsuccessful suit against an indor- ser, unless by misrepresentations or otherwise he induced its bringing.' One who receives a promissory note over-due as col- lateral security for a debt, with a request to collect it and apply the ' Sough V. London, eta., L. E., 5 " Lienan v. Dinsmore, 10 Abb. N. S. Excb. 50; MoKean v. Mclver, L. R., 309, N. T. Com. Pleas, Gen. Term. 6 id. 36. 6 Weff v. Olute, 13 Barb. 466 ; Potter ' Blossom V. Barry, 1 Lans. 190. v. Merchants' Bank, 38 N. Y. 643 ; Wal- « Short v. Enapp, 3 Daly, 150. rod v. Ball, 9 Barb. 371 ; Bider v. Pond, * Short V. Enwpp, 2 Daly, 153 ; WTiite 19 N. Y. 369, 37Q. V. Wimvinmmet, 7 Cusb. 157. ■■ Ayrault v. Pacific Bank, 1 Abb. N. S. 381. 390 COMPLAINT IN PAETICULAK CASES. [CH. IV A. proceeds upon the debt, though without any express request to sue it, incurs the obhgation to use due diligence in its collection and to sue if necessary ; where three months were allowed to elapse, and the debtor meanwhile became insolvent, held, the creditor was liable for the amount of the note.' So a creditor who negligently allows a policy of insurance he holds as collateral to expire, in consequence of not paying the premiums which had been secured to him, is liable for the loss thereof.'' If a horse be frightened by an engine and train of cars, so that he rupture a blood-vessel and die therefrom, the railroad company is not liable unless the injury resulted from some wrongful act thereof, either of omission or commission ;" but one who frightens a horse with fire-crackers is liable, although an infant, for the firing is wrong- ful.* One who leaves his horses unhitched in a public street, in consequence of which they run away, from being frightened, is liable for the damages caused by such running away •," so for negligently firing a gun which frightened a horse ;° or for beating a drum in a highway.' One whose horse is found running in the street is presumptively guilty of negligence.'' So where several persons are playing ball in a public street, and a passer-by is injured by the ball, all are liable ;° one who stands outside of an omnibus, and thus exposes himself to danger, cannot recover of the owner of the omnibus if injured by a passing team, as by his position he contributes to the injury ;" but if he be carelessly injured by the whiffletree of a passer-by he may recover of him." If one's team be frightened by other teams, trying to pass each other at an immoderate speed, he may recover the damages ;" but the owner of a team is not liable for an injury they inflict if rendered unmanageable by being struck by a wrong-doer." A druggist who sells two articles, harmless unless mixed, without being notified of their intended use, is not liable to one who pur- chases the articles from the original vendee, although by mistake ' WaJceman v. Qowdy, 10 Bosw. 208 ; ' Loubz v. Hufner, 1 Dev. 185. Smith V. Wilson, Andrews's Rep. K. B. * Hummell v. Wester, Brightly's N \^t \Bucldn(jliam^ . Payne, 36 Barb. 81. P. Rep. 133 ; Dickson v. McCoy, 39 N. » Soule V. Uiiion Bank, 30 How. 105, Y. 400. 45 Barb. 111. ' Vosburgh v. Moah, 1 Gushing, 458 ' Moslieir v. TJtica, Hi-., 8 Barb. 437. '° Spooner v. Brooklyn, etc., 36 Barb • Oonklin v. Thompson, 29 Barb. 218. 217. 31 id. 419. 'Howe V. Peckham, 10 Barb. 656; " Welling r. Judge, iO Burh. Id3. Overton v. Dunn, 1 Miles (Pa.) 39 " Burnam v. Butler, 31 N. Y. 480. « Cole v. Msher, 11 Mass. 137. '* Weldon v. Harlem., etc., 5 Bosw. 576. CH. IV A.J COMPLAINT IN" PARTICULAR OASES. 391 the .article actually sold was diflferent from that intended to be sold ; ' but a dealer in drugs who carelessly labels a poison as a harmless medicine is so liable, even to a remote purchaser.' So a druggist who sells morphine instead of quinine, which causes death.' One who is ignorant of the properties of a poisonous drug is liable to criminal prosecution for a negligent sale or use thereof,* and a civil action would clearly lie in such a case ; so with a druggist who grinds medicines in a mortar which has been used to grind poisons, without properly cleansing it.'* The party so injured may recover, although the articles were purchased for him and paid for by another.' If one sells, to be fed to a cow, part of a lot of hay on which he knows white lead to have been spilled, and the cow dies from the eifect of the lead in the hay, he is liable for her loss, although he carefully endeavored to separate and remove the damaged hay, and thought he had succeeded.' One who finds a rope used to suspend a scaifold attached to his chimney is guilty of negligence, and even a wrongful act, if he untie the rope and leave the scafi'old suspended so that one who steps upon it will be precipitated to the earth and injured.' Where several persons engaged in a common undertaking, to sink a sewer and jointly hired a party to do it, who left a hole uncovered, into which plaintiff fell, held, he could recover against either, or the party employed to build the sewer." One who injures another by a glancing ball, while firing at a mark, is liable for such injury." A traveler who sees or can see ice lying in a public street is bound to avoid it ; and, if he does not, cannot sustain an action for an injury sustained while traveling over it." Otherwise if the ice be covered by snow and concealed from view." In Massachusetts it has been held that the owner of real estate, fronting on a street, is not liable for an injury sustained by a pedestrian from accumu- ' Davidson v. Nichols, 11 Allen, 514, 35 Eng. C. L. ; Baird v. Gillett, 1 Alb. and see Loop v. Litchfield, 42 N. Y. 351. Law Jour. 338. ^ Thomas v. Winchester, 6 N. Y. 397 ; ' French v. Vining, 103 Mass. 133. approved, 36 N. Y. 306; Buddock v. ^ Phillips v. Wilpers,2'La.ns.3n. ioM,j4 Fost. & Pinl. 533, note ; Norton " Sli/ v. EdgUy, 6 Esp. 6, Lord Ellen- V. Bewail, 106 Mass. 143. borougli. ' Quin V. Moore, 15 N. Y. 433. '» Welch v. Burand, 36 Conn. 183, 4 * Reg. V. Ohamherlain, 10 Cox's Cr. Am. Rep. 55. Cases, 486 ; Beg. v. Spencer, id. 535. " Durkin v. Gity of Troy, 61 Barb. " Fleet Y.Eellenkemp, 13 B. Monr. 319. 437. « Longmeid v. Eolliday, 6 Bxch. 767 ; '^ Mosey v. City of Troy, 61 Barb. 580. Qludweil V. BtegaU, 5 Bing. (N. C.) 733, See Street v. Rolyoke, 105 Mass. 83. 392 COMPLAINT IN PAKTIOULAK CASES. [CH. IV A. latlouB, naturally, of snow and ice, though required by a city ordinance to remove it.' Where a railroad company negligently set fire to one of their own buildings, from which fire was blown to plaintiff's house, consuming a large amount of money, held, that as plaintiff could have saved the money by reasonable exertions, the company were not liable therefor,' although it was a question for the jury whether the injiiry to the house was too remote.'' One who maintains a building so that ice and snow will collect from natural causes and fall into the adjoining highway, is liable to a passer-by injured in falling therefrom.* A town is not liable to one injured by a defect in its highway, if plaintiff ran into the defect in consequence of losing control of his horse from the rein getting under the horse's tail.* One injured by a vicious cow, driven without proper care by one who knew her vicious propensities, may recover.* It is a question of fact for a jury whether a servant who knows portions of a floor are decayed, is guilty of negligence in passing over a portion thereof which was apparently sound, and the rottenness whereof could not be discovered without taking up the floor.' Notice.' — When the matter alleged in the complaint lies par- ticularly or solely within the knowledge of the plaintiff, he should allege that the defendant had notice thereof before suit.' ''When- ever the defendant may, by any apparent means, come to the knowl- edge of the thing, then no notice is requisite ; or if it be a thing that the defendant may as well come to the knowledge of as the plaintiff, then no notice is requisite : but if it be a thing that lies particularly in the knowledge of the plaintiff, then notice ought to be given. As, if I give a bond to pay so much to A when he cometh into Somersetshire, then A ought to give notice, because he may come in the night, or so as it is impossible for me 1 Kirby v. Boylston, etc., 14 Gray, 83. . " HuddleatoneY. Lowell, eto.,V)Q'Ms.s,s. « Toledo, ete., v. Pindar, 5 Am. Rep. 283. 57, .53 111. 447; but see Moak's note to ' Upon the subject generally see 1 Duke, etc., v. Mnropolitan, etc., 2 Bng. Chit. PI. 338, et seq., 3 Conw. Rob. Rep. 494, and Kellogg v. GMeago, etc., Prac, 598-601, 4 id. pp. 13, 35, 66-7, 74, 20 Wis. 238. 75, 81, 133, 307, 248, 374, 345, 346, 478, 1 '■ Shipley v. Mfty Associates, 106 Estee's PI. and Prac. 336, Saund. Rep. Mass. 194. Cth I'd. index to Notes, title " Notice." " Fogg V. Nalumt, 106 Mass. 378. * Bloxam v. Warner, 1 Freem. 130; ^ Hewes v. McNamara, 106 Mass. Onlev. Jessup, 3 Barb. 314; Knight y. 281. Ounii., etc., 44 Vt. 473. CH. IV A.] COMPLAINT IN PARTICULAR CASES. 393 to kuow it ; but, otherwise it is if it be when a stranger cometh into Somersetshire, for there I may take notice as well as he." ' There is a marked distinction between cases where notice is neces- sary as preliminary to the action, to enable the defendant to pay and save the costs of the action, and cases where notice is necessary to constitute a cause of action." "Where notice is required it is not sufficient to allege that it was given, " according to the form and effect of the condition " of the instrument ; but the party must plead the foots, showing how it was given.' JSfor is a gen- eral averment of facts " which defendant well knew " sufficient." Otherwise ot an allegation of the facts and following them with one, " of all which premises, said defendants afterward had notice." ' ISTotice is necessary when a vessel is to be delivered as soon as completed." If o notice of an award is necessary unless notice be stipulated for ;' nor in case A agrees to pay if B shall fail to do so.° Where the statute required notice to remove a nuisance or obstruction, a notice " to remove from such bulkheads the build- ings, sheds, gates and fences which are now there placed or kept " are sufficient.' Where the law requires a board of officers to give notice, one by the president is not sufficient, though verbally authorized by the board ; " and, as a rule, the particular thing required to be done should be specified." In the absence of an agreement that a broker may sell without notice, if the customer's margin be not kept good such notice is necessary. '° One who has agreed to contribute to the repair of a canal or dam is entitled to notice of a call to contribute, even though he had previously disclaimed all liability." So where one of several co-sureties pays 1 Gierke v. Child, 1 Freem. 254, 3 ■" 2 Saund. Eep. 63 a, note. The case Saund. Eep. 62 a note ; Lent v. Padel- of Kingsley v. Bill, 9 Mass. 198, is not ford, 10 Mass. 338 ; Clougli v. Hoffman, good law. 5 Wend. 500 ; Brenty v. Todd, Yel v. 68 a ^ KemUe v. Wallis, 10 Wend, 374. and Metcalf's note ; Massey v. Baynor, ' Board, etc., v. Brie, etc., 5 Rob. 866, 33 Pick. 223 ; Ratch v. White, 22 id. 518. 383-5, 41 N. Y. 619. ' Bryan v. Heck, 67 N. C. 333. i" Commissioners v. VanderUlt, 31 N. ' Harwood v. HUyard, 1 Freem. 347, T. 265, 368-370. 3 Mod. 268 ; Brookes v. Dean, 1 Levinz, " Commissioners v. Pilots, 31 N. Y. 145. 268-9. ■• Colchester v. Brooks, 7 Queen's B. '^ Bitter v. Cushman, 7 Rob. 394. 339, 53 Eng. C. L., Story's Bq. PI. g 363. '^ Northfleet v. Cromwell, 8 Am. Law 6 Spooner v. Baxter, 16 Pick. 409. Times St. Courts Rep. 104, Sup. Ct. N. « Boot V. Bentley, 3 Johns. 307 ; C. Jan. 1870. Hughes v. Garner, 3 Younge & Coll. Exch. Bq. 338. 50 394 COMPLAINT IN PAETICULAE CASES. [CII. IV A. the debt, lie cannot recover of another co-surety without notice of such payment ; ' so, M'here goods are to be delivered at seller's option in August ;' but when such notice is once given it cannot be changed,' but he may give notice of delivery of part on two days if it is to arrive by two ships.* If one covenant to do an act within a certain time no demand is necessary.' If A covenants generally to make further assur- ance to B, at his cost, A ought to give notice to B of what assurance he will make, and the costs thereof; B ought to tender the costs, and then A make it ; but if A shall make a new demise to B, at his costs, B ought first to tender the costs, for he knows what A is to do." "Where a party can perform at either of two places, or without designating a place, or at any time he chooses, notice of the time and place is necessary.' So if he can perform by delivery of one of two articles.' So on an agreement to deliver articles to be manufactured at a particular place, without the time being specified." Under an agreement to pay A for certain wood, so much as he shall obtain for the residue, notice of the amount so obtained must be averred and proved." If notice to two parties, even jointly liable, be required, notice to one is not sufficient," unless they be joint agents for one principal.'^ One who claims as a ioTiafide purchaser must allege afiirmatively that he had no notice of any facts which would render him otherwise ;" and must aver and prove payment of the consideration.'* A pledgee must demand payment of the debt and give notice of the time and place at which he intends to sell, unless the contract waive such demand and notice." On a covenant to pay such sum as an apprentice ' Northfleet v. Gromwell, 3 Am. Law v. Ferrall, 13 Wend. 385 ; Knight v. Times St. Courts Rep. 104. Oonn., etc., 44 Vt. 473. ' Gath T. Lees, 8 Hurl. & Colt. 558 ; » Aldrich v. Albee, 1 Maine, 130 ; Btokes V. Brown, 3 Sweeny, 457 ; but Knight v. Conn., etc., 44 Vt. 473. see Mxon v. Nixon, 21 Ohio State R. ' Newcoinb v. Cramer, 9 Barb. 403 ; 114. Knight v. Conn., etc., 44 Vt. 473. ' Qath V. Lees, 3 Hurl. & Colt. 558 ; '» Holmes v. Twist, Hob. 51, and Wil- but see Nixon v. Nixon, 31 OMo St. R. liams's note. 114. " Snyder v. SponaUe, 1 Hill, 567, 7 ^ Thornton v. Simpson, 6 Taunt. 556, id. 437 ; Wiswall v. McGown, 2 Barb. 1 Bng. C. L. 270. ^ Bracebridge v. Buckley 2 Price, 310, '^ Bank v. Bavis, 3 Hill, 453. 313. " Gellatain v. Erwin, Hopk. 48, Kerr « Heron v. Treyne, 2 Ld. Raym. 750. on Frauds, 303-3 (Eng. ed.) ; Haugh- ' Spooner v. Baxter, 16 Peck. 409 ; wout v. Murphy, 33 N. J. Eq. 531. Rogers v. Van Hoesen, 12 Johns. 221 ; •'' Haughwout v. Murphy, 33 N. J. Eq. Aldrich V. Albee, 1 Maine, 120 ; Cook 531 ; Rice v. Buncc, 49 Missouri, 231. '' Milliken v. Behan, 37 N. T. 375-6. CH. IV A.] COMPLAINT IN PAETICULAB OASES. 395 should embezzle, within three months after request and due proof made, the complaint must aver that due proof was made as well as the request.' If the seller is to deliver, on giving the buyer five days' notice of the time of delivery, such notice is a condition precedent to the buyer's liability, and if he sue for dam- ages, readiness and willingness to accept and pay for the article on the receipt of such notice is sufiicient." Nuisance.^ — An individual citizen cannot maintain an action to restrain another individual by injunction from an act alleged to be a jpxiblio nuisance where he suffers injury only in common with other citizens.* A, whose game is enticed away from his land by B, is liable to an action for exploding combustibles so as to be a nuisance to B, although he explode the combustibles in order to frighten the game away from B's land, and prevent him from killing them or enticing other game.* An action lies by the attorney-general to restrain a municipal corporation from granting licenses for, and permitting the erection of embankments in a navigable river, if the persons so licensed be also made defendants." Where a public bi'idge darkened plaintiff's premises, caused crowds to collect in front of them and in some cases to pass through them ; held, plaintiif showed sufficient special damages to entitle him to maintain the action.' A blacksmith shop in a city properly carried on, and in a proper locality, cannot be restrained as a nuisance ;' and so a steam flouring mill." A board of health may abate a nuisance after hearing the party upon notice." Where one is injured by the deposit in a public river, of mash from a brewery, he sustains a special injury which entitles him to maintain an action for its suppression ;" but the person bringing such suit must own the bed of the river.'^ What is a public nuisance must be ' Oookhay v. Woodward, Hob. 317 a. * Manhattan, etc. v. Barker, 36 How. ^ Stolces Y. Brown, 3 Sweeny, 457 ; but 333, 7 Rob. 533 ; Masterson v. Short, 7 see Mxon v. Mxon, 31 OMo St. E. 114. Rob. 241. ^ Upon the subject, generally, see Ad- ^ Ihhottson Y.Peat,Z Hurl. & Colt, dison on Torts, Hill, on Torts, Hill, on 644. Remedies for Torts, 2 Story's Eq., §§ 'Corporation, etc. v. Att'y-Gen'l, 1 931-930, Smith's Man. Eq. 419, Estee's House of Lords Cases, 439. PI. and Prac, Kerr on Inj., Hill, on ' Knox v. Mayor, etc., 55 Barb. 404. Inj., Waterman on Ini.,Moak's notes to » Doelner v. Tynan, 38 How. 17C. Clarke's Ch'y, 350, ed. 1869, title " Nui- « Gilbert v. Showerman, 23 Mich. 448. sance," in Burns's Justice, vol. 3, 30th '» Reynolds v. Sehultz, 34 How. 147 ■ ed., though strictly relating to criminal Weil v. Schultz, 33 How. 9. proceedings, may be consulted to advan- " Mayor v. Baumhurger, 7 Rob. 219. tage ; Powers v. Stanton, 23 Mich. 439. '- Hudson River v. Loeh, 7 Rob. 418. 396 COMPLAINT IN PARTICULAR CASES. [CH. IV A. determined by general and fixed laws. A city has no right to declare any particular business or structure a nuisance, in such a summary mode as a special ordinance, and enforce its decision at its own pleasure.' A public school is not a nuisance within a clause in a deed that it shall not be used for any purpose which renders it a nuisance to adjoining lands.' But a barn with a cellar under it which holds manure and iilth, which renders the enjoy- ment of a neighboring house uncomfortable, is. Otherwise where no smell occur, except where water gets in on a special and extra- ordinary occasion.' A city is liable for appropriating the waters of a public river, so that the navigation thereof is impaired, and the plaintiff's vessel thereby detained.* An injunction lies to restrain the carrying on of a factory emitting sulphurous gas, destroying vegetation, com- pelling the -closing of windows, and irritating and inflaming the throats of those who breathe it. It is not necessary it should injure the health, nor is it a defense that it neutralizes a malaria in the neighborhood, nor that it existed before plaintiff acquired his property or built his house.' Officer. — An action to recover damages for a tort will lie against a public officer acting by independent authority, and not merely as an agent, for a violation of a ministerial duty absolute, certain and imperative in its nature, imposed upon him by law and specifically due to a particular individual, as distinguished from the whole public — as against a supervisor who refused to lay a land-owner's claim for damages for lands taken for a public highway before the board of supervisors ; the measure of damages is the amount of the assessment." An action lies against an officer charged with a ministerial duty to recover damages for the man- ner of his doing it, if the doing result in special damages to the plaintiff', although several methods of accomplishing the result are open to adoption, and he is called upon to choose between them.' An officer who has two warrants is not liable for seizing prop- ' Tates V. Milwaukee, 10 Wall. 498. <■ Mulligan v. Elias, 43 How. 259. 2 Harrison v. Good, L. R., 11 Eq. « Glark v. Milki-, 47 Barb. 38. 338. ' Sicks v. Dorn, 54 Barb. 173, 1 Lans. 3 Pickard v. Oollins, 23 Barb. 445. 81 ; affirmed on appeal, 43 N. Y. 47, 9 * Gity of PhUadelpMn v. Oollins, 68 Abb, N. S. 47. This case led to tlie Penn. St. R. 106. See Powers v. Stan- adoption of chapter 333 of the laws of ton, 33 Mich. 439. 1870, vol. 1, p. 530. CH. IVA.J COMPLAINT IN PAKTICULAE CASES. 397 erty, if one of them is valid ;' provided he justify in his answer under both.° But if he first arrest a party on an invalid writ he cannot arrest him again, while in custody thereunder, on a valid one ; to permit him to do so would be to allow him to take advan- tage of his own wrong.' An officer having civil process is liable for breaking an inner door, where several persons occupy difi'erent parts of a house, and the door broken is a hall door." Parent and Child.^ — ■ The father of a child may maintain an action against one who entices him from his service, as, also, may a master for enticing his apprentice. He can, however, recover only the actual damages for loss of service up to the bringing of the suit, and is not entitled to vindictive or exemplary damages." And if the child die before suit, damages for loss of service down to the time of his death is all that the parent can recover.' The reason that damages can only be recovered up to the com- mencement of the action is, that it was then uncertain how long the child or apprentice might remain away. He might return, and the parent or master have the benefit of his services in the future. The rule is different for a breach of contract, for there can be but one breach and one recovery therefor, so that the action once vested the damages must be entire.' It should be stated, however, that there is very respectable authority holding that where a servant is enticed from the service of his master the latter is entitled to recover for loss of services during the entire term of the former,' and some holding a parent is entitled to recover exemplary damages." If a child leave the I Hays T. Drake, 6 Gray, 387 ; Hooper 82 ; Heat v. OiUmer, 6 Iredell (N. C.) V. Lane, 6 House of Lords Cas. 443 ; 450 ; James v. Christy, 18 Mo. 164 ; and Peek V. Tiffany, 3 N. Y. 451. see Harhin v. Green, Hob. 189. ^ Graham v. Harrower, 18 How. 144. ' Nickerson v. Harriman, 38 Me. 277 ; ' Hooper v. Lane, 6 House of Lords Gutting v. Beabury, 1 Sprague's Dec. Cas. 443. 522, reviewing the cases. Mason v. V. Mizner, 8 Gray, 183, dis- Ship, 3 Crancli, 240, 370. tinguishiag Lee v. Gunsell, Cowp. 1. * Taylor v. Bradley, 39 N. T. 129 ; ' Upon the subject, generally, see see comments thereon and correction Reeves' Dom. Eel., Tyler's Inf. and of the case, including opinion of Gko- Covert.,Kent's Com.,Blackstone's Com., tee, J., 1 Alb. Law Jour. 265, 339, and Pars, on Cont., Add. on Torts, Hill, on see Bagley v. Smith, 10 N. T. 489. Torts, Broom's Com., Bouv. Inst. ' Hays v. Bwders, 1 Gill. (111.) 46 ; * Hambleton v. Veere, 3 Saund. Eep. Ford v. Monroe, 30 Wend. 210, which 169 ; Covert v. Gray, 34 How. 450 ; is disapproved in Greene v. Hudson, Lems v. Peachy, 1 Hurl. & Colt. 518 ; etc., 38 Barb. 20, and Carey v. Berkshire, R. B. Go. V. Kelly, 31 Penn. St. E. 373 ; etc., 1 Gush. 478. Gilligan v. Mayor, 1 E. D. Smith, 460 ; '» Magre v. Holland, 3 Dutch. (N. J.) Luseom v. Osgood, 1 Sprague's Dec. 86; 2>uhois v. Allen, Anthon's Nis! 398 COMPLAINT IN PARTICULAE CASES. [CH. IV A. service of his parent, or an apprentice that of his master, and after he has done so another induce him to enter his service, he is not liable to an action for enticing the child or servant from the service of his parent or master,' although in a complaint for the services he would be liable for them.° A father is not entitled to exemplary damages even for an indecent assault upon his minor daughter, with circumstances of great aggravation.' If the father neglect to care for the child, leaving the mother to do so, he cannot maintain an action for enticing the son from his service ;* nor can he maintain the action for removal of a child beyond the reach of a writ of habeas corpus, when it appears that he had not an absolute right to its custody, and that it was not capable of rendering any services of value.' The law is well settled that when a child, after arriving at majority, continues to labor for the parent, the law, considering the relation of the pa;rties to each other, will not imply a promise to pay the child for such services, and vice versa y ° nor by a child to pay a parent, or a parent to pay a child for support or clothing.' A promise to pay will not be inferred from the mere fact of the rendition of the services." But when, from all. the circumstances of tbs case, it is apparent that there was an understanding for compensation, an action to recover the value of the services will lie ;' but mere loose declarations, to third persons, by a father, that he intended to pay his son, are not sufficient, and it is error to permit the jury to infer a contract from such loose declarations.'" So a mother is not Prius, 138, Van Ness, J. ; Plummer v. Aernum, 43 Barb. 603 ; Wilcox v. Webb, 4 Mason, 880. Wilcox, 48 id. 327; Brush v. BlancTi- ^ Butterfieldy. Ashly,2 Qia.j,25i. ard, ]8 111. 46; Hudson v. Lutz, 5 '' Buttcrfield v. Ashly, 6 Gush. 349, 2 Jones's Law (N. C.) 317 ; Davis v. Good- Gray, 256. enow, 1 Williams (Vt.), 715; Lantzy. * Whitney v. EiUhcoclc, 4 Denio, 461 ; Frey, 19 Penn. 366 ; MosteCler's Appeal, Hunt V. Wotton, T. Raym. 260 ; Ooioden 80 Penn. St. 473 ; Harris v. Currier, ■V. Wright, 34 Wend. 439 ; Pack v. 44 Vt. 468. Mayor, 8 N. Y. 489. 8 Q,.gg„, v. Roberts, 47 Barb. 521 ; * Wodell V. Ooggeshall, 2 Met. 89. Bundy v. Hyde, 50 N. H. 117. V. Bodge, 2 Duer, 42. ' Martina. Wright's a dinr., 13 Wend. Green v. Roberts, 47 Barb. 521 ; 460 ; Green v. Roberts, 47 Barb. 460 ; Livingston y. Ackeston, 5 Cow. 531, 5S2. Robinson v. Raynor, 28 N. T. 497, ' Sterpv. Cro^jsey, 11 Barb, 334,236, below, 36 Barb. 128; Conger v. Van 338 ; Williams v, Hutchinson, 5 id. Aernum, 43 id. 603. The case of 133-125, 3 N. Y. 313 ; Maltby v. Har- Green v. Roberts, so far as it seems to wood, 12 Barb. 473 ; Williams v. Mnch, hold that the mere rendition of services 2 id. 308; Robinson v. Cushman, 2 authorizes a jury to infer a promise to Den. 149 ; Moore v. Moore, 31 How. 211, pay, is not borne out by the authorities. 222, 224, Ct. App. ; Bowen v. Bowen, 2 "> Hertzog v. Eertzog, 39 Penn. St. Bradf. Surr. Rep. 336 ; Conger v. Van 465. CH. IV A.] COMPLAINT IN PAETICUIAE CASES. 399 liable to her son for rent of real estate occupied by her, except on proof of an agreement to pay rent therefor." Proof of the pecuniary circumstances of mother aud son is not admissible on the question of a promise." The rule is the same as to money advanced.' And the rule that there is no implied agreement for compensa- tion between parent and child applies between persons merely standing in such assumed relation ;' and so where a sister of de- fendant's wife lived and worked in his family for thirty years.* Such relation is established by evidence that the parties lived together and recognized by their acts the existence thereof.^ Where there was no promise by a parent to pay a child for ser- vices, but his executor gave a note therefor, it was held to be with- out consideration, and that if he paid it, the amount so paid could not be allowed on an accounting before the surrogate.' A father may lawfully contract with the superintendents of the poor for the support of an indigent child.' A parent is not liable for the willful act of his minor child, as for setting a dog upon animals." A father may maintain an action for clothing furnished a minor son, unemancipated, lost or stolen at a hotel.' A father may emancipate his minor child so as to entitle him to recover for his services, and such emancipation may be proven by circumstances," although there be evidence of the father's dissent from the son's laboring for another, and that he claimed the pay for his services." The father may manumit his infant child and thereafter become liable to pay her wages. '^ There is much harshness in the rule, and yet there is great doubt whether a mother, as such, has any right to the services of her infant child or to recover therefor. The eases and dicta are very conflicting. " > Wills Y. Wills, 34 Ind. 106. ' Alger r. Miller, 56 Barb, 227. ' Sarris v. Currier, 44 Vt. 468. ' Tifft v. Tifft, 4 Den. 175, ante, this ' Duffy v. Harrison, 2 Am. Law Reg. chapter under title " Animals." N. S. 434 ; Ganger v. Van Aernum, 43 ' Dickinson v. Winchester, 4 Cush. Barb. 602 ; Andrews v. Foster, 17 Vt. 114. 556, 1 Pars, on Cont. 531, note e; Malony " Oanomr v. Cooper, 3 Barb. 115. V. Scanlon, 53 111. 122 ; Whaley v. Peak, " Dodge v. Fawe, 15 Gray, 82 ; but see 49 Missouri, 80 ; Bundy v. Hyde, 50 Stiles v. Granville, 6 Cush. 458. N. H. 117. 12 jTort V. Gooding, 9 Barb. 371. ' " ' ' V. Hyde, 50 N. H. 117. " In the affirmative, Jones v. Jertis, 4 ^ Dalton V. BetUehem, 30 N". H. 505. Litt. 25 ; Hammond v. Corhett, 50 B. H. ' Dye V. Kerr, 15 Barb. 444 ; Shep- 501 ; dicta, Williams v. Hutchinson, 5 herdY. FoMM^r, 8 Gray, 153. Barb. 133, 3 N. Y. 312; Graham v 400 COMPLAINT IN PARTICULAR CASES. [CH. IV A. Indeed, it may be doubted, strange as it may seem, whether the mother of an illegitimate child is not entitled to recover while the mother of a legitimate one is not,' for a bastard has no legal father. His mother is the only parent recognized, as such, by the law. Partition.''— A tenant in common in reversion cannot main- tain a suit for partition, and if he has no title to maintain his suit at the time when his bill is filed, he cannot carry on the suit by subsequently acquiring a title and amending the bill accordingly.' One tenant in common of unoccupied lands may maintain the action," but if the other have possession adverse to the plaintiii' he cannot.^ After the four years when the personal representatives may apply for leave to sell to pay debts, the real estate of deceased may be partitioned though he was indebted at his death, but sufficient of the proceeds will be retained by tiie court to pay all such indebtedness." Although if it affirmatively appear that there are such debts, it seems, a partition will not lie.' One tenant in common who has made repairs, paid incumbrances, taxes, etc., in good faith, on par- tition will be allowed therefor, or the portion improved will be set off to him on proper allegations being made in the complaint and the facts established,' and so the court will set apart to each that Kinder, 11 B. Monr. 60 ; Jones v. Buch- Eq. 239-333, Smith's Man. of Eq. 30, ?(!2/, 19 Ala. 604,3 Bish. Mar. and Div.SI 388-391, 3 Barb. CK Pr. 284,314,2 537-8 ; Burk v. Phillips, 1 Root, 487"; Crary's Prac. 93-164. Jones V. Buckley, 19 Ala. 604. In the ^ Moans v. Bagshaw, L. R., 5 di. App. negative, Fairmount v. Stutter, 54 340, L. R., 8 Eq. 469 ; Stryker v. Mott, Penn. St. 375 ; see Penn. E. JR. v. Bun- 3 Paige, 387. tine, id. 495 ; dicta, Bartley v. Rieht- * Beebe v. Oriffing, 14 N. T. 235. meyer, 4 N. Y. 46 ; E. B. v. E. G. B., 28 = Stryker v. Lynch, 11 N. T. Leg. Barb. 303 ; Commonwealth v. Murray, Obs. 116, Gen. T. 5tli Dist. 4 Binn. 487 ; Morris v. Law, 4 Stew. * Warring v.Warnng, 7 Abb. 473. & Port. 123 ; Jenness v. Emerson, 15 '' JDisbrow v. Folger, 5 Abb. 53 ; BO- 'S. H. 486 ; Ereto v. Brown, 4 Mass. 675. gert v. Bogert, 45 Barb. 123 ; Spring v. See Moak's note, 3 Bng, Rep. 683, as to Sanford, 7 Paige, 550 ; Dan-oers v. seduction. But as that action is found- Dorrity, 14 Abb. 306 ; Matthews v. ed on the relation of master and ser- Matthews, 1 Edw. 565 ; Waring v. War- vant, the cases are not necessa/rily ing, 3 Abb. 346 ; Hyde v. Tanner, '•■ authority upon this question. Barb. 75. ' InJiabitants v. InhaMtants, 12 Mass. ' Green v. Putnam, 1 Barb. 500, 1 387 ; Wright v. Wright, 3 id. 109 ; Mat- Story's Eq. Jur., g§ 656-8 ; Town v. ter of Doyle, Clarke's Ch. 155, and N'eedham,'i Paige, 545; St. Felix v. Moak's note, p. 160, ed. 1869; Inhabit- Rankin, 3 Edw. 333; Gonklin v. Conk- ants V. Inhabitants, 13 Mass. 429 ; Bex tin, 3 Sandf . Ch. 64 ; Hitchcock v. V. Soper, 5 Term. R. 278 ; Bex v. Hop- Hitclieock. Hoif. 31 ; but see Skinner v. kins, 7 East, 579. White, Hopk. 107 ; Otis v. Cusaek, 43 ' Upon the subject, generally, see 1 Barb. 546 ; Bulen v. Burdell, 11 Abb. Story's Eq. Jur., gt^ 646-658, Adams's 381 ; Jackson v. Bradt, 3 Cai. 303. CH. IV A.] COMPLAINT IN PARTICTJLAE CASES. 401 portion of the premises most convenient for liim.' As the court adjusts the equitable rights of the parties and will give special in- structions to the commissioners, the facts should be alleged in the complaint and the proper relief prayed for.'' A tenant in the occu- pation of the premises under one joint owner is a necessary party to an action for partition." Partnership.' — • One partner may maintain an action against another proceeding in violation of the partnership agreement to compel the surrender of stereotype plates and books* and for an accounting. It has been held, at special term, that an action will lie by a partner to enjoin an individual judgment creditor of another copartner from selling upon execution the interest of such copartner in the partnership assets, when it is made to appear by the complaint that the copartner whose interest has been seized has no interest in fact in the assets, and the plaintiff offers to submit to an accounting to show this to be the case ;' but we do not think the case can be sustained upon principle. It is the duty of the sheriff, imder such circumstances, to take into his possession the partnership property.' The law provides for a determination as to whether the partner against whom the judgment is individually obtained has any interest by a sale of that interest at public auction by the sheriff,' and we can see no reason why the judgment creditor should be subject to the vexa- tion, delay and expense of a litigation, to arrive at the same result, perhaps on contradictory testimony, as to the value of the partner- ship assets, where the finding of the court upon the question might or might not be borne out by the results of a sale in the manner provided by law. If the articles for a copartnership prescribe a definite period for '1 Story's Eq. Jur,, § 656, 2 Barb, see ante, title " Good-will of Business." Ch. Pr. 299 ; Qreen v. Putnam, 1 Barb. As to the remedy see Story's Eq. Jur., 509 ; Btory v. Johnson, 1 Y. & Coll. Smith's Man. Eq. (1st Am. ed.) 348-353, Exch. Eq. 588 ; Lister v. Lister, 8 id. Adams's Eq. Daniell's Ch'y Prao. (4th 540. Am. ed.) Barbour's Ch'y Prac. * Story V. Johnson, 2 Y. & Coll. Exch. = Redfield v. Widdleton, 1 Abb. N. S. Eq. 586. 15, 1 Bob. 79, distinguishing S. C, 7 ^ Cornish v. Gest, 2 Cox, 27 ; but see Bosw. 649. Herbert v. Heges, 10 Irish Eq. 497, as « Turner r. Smith, 1 Abb. N. S. 804. to tenant being entitled to costs ■> Smith v. Orser, 42 N. Y. 182, aff'g, against Ms landlord. 43 Barb. 187. ^ Upon the subject, generally, see * Crocker on Sheriffs (2d ed.), ^i; Story on Partnership, Pars, on Part- 369, 438. neisMp, and Collyer on Partnership, 51 402 COMPLAINT IW PARTICULAR OASES. [CH. IV A. its continuance neither party can dissolve it at will, and the expres- sion in a pleading, of a desire to dissolve a copartnership by one partner is not equivalent to an acceptance of an offer by the other to dissolve it, made a month previously.' When two firms engage in a joint adventure they are partners therein." Generally, where one member of a firm gives his individual obligation, though it be known to be on a partnership transaction, the firm will not be bound ; but the rule does not apply where there is, unknown to the creditor, a secret partner.' If one partner be prosecuted to judgment for a firm debt, a vacatur of the judgment, saving the rights of the partner not sued, will not revive the cause of action against him.' So where a person indebted on account to two partners executes a mortgage to one of them, to be transferred to the other at an usurious rate of interest, to raise money to pay the debt, and it is so transferred, and the proceeds, to an amount exceeding the amount of the debt, received by the firm and credited to the debtor in his account, the debt due to the firm is thereby canceled. ISTo recovery can be had on the accoimt although the mortgagor successfully defended a suit in equity to foreclose the mortgage by setting up and maintaining the defense of usury. ° But one partner is liable for fraudulent representations as to the responsibility of the firm,- although judgment upon the debt thus contracted has been recovered against the firm." When partners settle their partnership aft'airs, and one agrees to pay the other a definite sum for his interest in the partnership assets an action lies at once to recover it ;' otherwise, even upon a note given to a stranger when the partnership is not dissolved.' Until the partner- ship aflairs are adjusted, two partners cannot sue a third for their ' Smith V. Mulock, 1 Rob. 569. in New York by section 136 of the ^ Davis V. Grove, 2 Rob. 134; Matter Code, as amended in 1866. of Warren, Davies's Rep. 320. '' Ayrault v. Green, Seld. notes, July, * Matter of Warren, Davies's Rep. 1853, p. 23 ; see cases cited Moak's 330, but see Nesbitt v. Howe, 8 Irish note to Clarke's Ch. 84, marg. pp. Law Rep. 273. * Morgan v. Skidmore, 55 Barb. 363, * Olmsted v. Webster, 8 N. T. 413 ; affirmed Court of Appeals, Nov. '70, 2 Robertson v. Smith, 18 Johns. 459 ; see. Alb. Law. Jour. 457 ; see also Howard v. also. Brown v. Johnson, 13 Gratt. 644 ; France, 43 N. Y. 593. Collins V. Lemasters, 1 Bail. 348 ; Treas- '' Jackson v. Stopherd, 3 Cromp. & urers v. Bates, 2 id. 363 ; Sheehy v. Mees. 361. MandeviUe., 6 Crancli, 353 ; Vestry v. * Buell v. Oole, 54 Barb. 358. Ramsey, L. R., 6 Com. PI. 247. The injustice of such a case is provided for OH. IV A.] COMPLAINT IN PARTICULAR CASES. 403 share of the profits of the partnership ; ' although the firm is liable upon a negotiable instrument given for the purposes of one of the firm, and transferred to an innocent purchaser;" the otlier partner is not liable upon such an instrument made by one partner before, but actually delivered after, the firm was dissolved.'' So where the party taking a firm note had knowledge of circumstances putting him upon inquiry tending to show it was not given for a firm debt ;'' notwithstanding a firm does business in the name of one of its members alone, a note given in his name is presump- tively an individual obligation.* If a client employ an attorney or counsel, who subsequently takes a partner the partnership cannot recover for services ren- dered unless there was, to the client's knowledge, a substitution of attorneys or some understanding or agreement which will enable the firm to recover.' The rule that partnership assets will be applied to pay partnership debts, and individual property to the payment of individual liabilities, only applies to actions upon con- tracts and not to those sounding in tort,° nor to actions by a retir- ing against the remaining partner to compel him to satisfy the part- nership debts on a covenant to pay them. A mere covenant to pay the debts without one to so apply the assets is insufficient.'' One partner may maintain an action against another for dissolving the partnership before the time stipulated," and the action lies, at once, on the dissolution. ° If one partner become a lunatic that dissolves the copartnership." Several intricate questions have arisen where one individual was a member of different firms, which are consid- ered by a recent writer." In such case, where the accounts between the firms have been stated, the creditor firm, without the dual partner, he refusing to join, may maintain an action for the bal- ance, making him a defendant ;" otherwise if the account had not been stated. In such cases the relief must be sought in equity ;" ^ Farrar Y. Pearson, 59 Me. m\. " Bagley v. Smith, 10 N. T. 489; ' Mechanics', etc. v. Foster, 29 How. Skinner v. Tinker, 34 Barb. 333. 408 ; Austin v. Vandermarh, 4 Hill, 259 ; ' Bagley v. Smith, 10 N. Y. 489. etc. V. Mdred, 9 Wall. 544. " Leaf v. Coles, 1 De Gex., Mc N. & * Gale V. Miller, 1 Lans. 451. Gord. 170 ; Kirhy v. Carr, 3 Y. & CoU. *Wational, eta. v. Ingraham, 58 Barb. Exch. Eq. 184. 290. " 5 Am. Law Rev. 47 ; see also 1 Para. ^ Davis V. Peek, 54 Barb. 425. on Cont., (5tli ed.) 165. ' Morgan v. Skidmore, 55 Barb. 363. " Cole v. Reynolds, 18 N. Y. 74. ' Gory V. Long, 2 Sweenv, 491. " Engliss v. Furness, 4 E. D. Smith, 587, 2 Abb. 833. 404 COMPLAINT IN PAETICULAE CASES. [CH. IV A. although, perhaps, since the supreme court has equitable as well as legal jurisdiction, the distinction is not very material if the facts be sufficiently stated.' It is no bar to a recovery that one of several defendants has become possessed of a right of action prose- cuted against him and his co-defendants iinless his name appears upon the record as plaintiff and as defendant.'^ A valid contract may be made by A with himself and others. If a firm be indebted to one of its members he can only have relief in equity on a statement of all the facts, for at law he cannot be both plaintiff and defendant ;* but his assignee may sue at law.' Party wall." — If one, without permission, insert the beams of his house in the wall of his neighbor, he is not entitled to an injunction to restrain his neighbor from taking down such wall, unless he have acquired a right to support by adverse user. " Penalty. — In an action to recover a penalty for obstructing a highway the complaint need not aver that all the necessary steps were taken to lay it out as a highway. It may simply be averred as a highway, and proof that it had been worked and used by the people as a public highway for fifteen years is sufficient.' It seems where a penalty is one-half payable to the complainant and the other half to the State, the complainant may sue for the whole penalty in his own name.' Performance.' — Where the plaintiff seeks to recover of the defendant for non-performance of a contract, he must, in one of the methods already pointed out," allege performance on his part of all concurrent or prior acts." On an agreement to deliver stocks in the future, stocks " watered " after the agreement will be in compliance with the terms of the contract."' A sale of goods " to ' Kingsland v. Braisted, 2 Lang. 18. " Lynch v. Steamer, 37 Wis. 69. '' BlanduiTd v. Ely,%l Wend. 343. ' Upon tlie subject, generally, see 1 ^ MorUy v. French, 3 Cnsli. 130; Cliitty's PL, title "Performance," 3 Traders' BanlcY.Bradner.ii'BB.Tb.Zl^. Goniv. Rob. Prac. 571-581, 4 id., title * Traders' Bank v. Bradner, 43 Barb. " Condition Precedent," 5 id., title " Per- 379. formance," Estee's PL and Prac, same ' Upon the subject, generally, see title, 1 Wait's Law and Prac. 939-944, ante, title '■ Covenant," Washb. on title " Tender," and see index, title Easem., 3 Washb. on Real Est. 367, "Performance," Cow. Tr. (Kingsley's 384, Addison on Torts (3 Eng. ed.) 173- ed.) §^ 114, 317, 373, et seq„ 954, 957- 4, 376, 384, Shear. & Eedf. Neg., g 58, 961, §63, 1135, and see post. Bouv. Inst. (2d ed.), §§ 1615-1618, 3499, '« Ante, marg. p. 384. Bouv. Law Die, title "Party Wall," " 8 N. Y. 508, 11 id. 458, 1 Abb. 343, Kerr on Inj. (1st Eng. ed.) 375-6. 347, 33 How. 197, id. 334^5, 31 N. Y. 397. 6 Roherts v, Wdte, 3 Rob. 425. '= Gurrie v. White, 6 Abb. N. S. 353. ■^ Chapman v. Gates, 46 Barb. 313. CH. IV A.] COMPLAINT IN PAETICULAE CASES. 405 arrive" is a mere executory contract, conditional on their arrival, and the purchaser may reject a partial, and insist upon a full per- formance of the contract. If less than the amount contracted for arrives, he is not bound to accept that as a performance.' A party is bound to deliver according to the terms of his agreement, although it be to deliver spirits under an existing law, and the secretary of the treasury, under its provisions, suspend the law so that the spirits are subjected to a higher duty." On an agree- ment to sell and deliver a cargo of about nine thousand bushels of barley, the purchaser is not bound to accept a cargo of less than about that number of bushels ;' but if a smaller cargo be accepted it must be accepted as a full, and not a part performance.' Under an agreement to convey a piece of land "to be occupied for a Jewish synagogue," the grantees are entitled to a deed, in which the use is incorporated as a condition merely, and not to one running with the land, rendering them liable to damages if it be not so used.' Under an agreement that the lessor is to complete certain repairs by the 14th of June next ; and that, in considerar tion of these conditions being fulfilled, the lessee is to take the property for three years at an annual rent, the repairs must be completed by the time specified, or the lessee is not bound to take the premises.' If the vendor absolutely refuses to perform, the vendee need not show readiness or a tender of the purchase price ;' but in other cases he must aver and prove such a tender." If tender or offer of performance was for any reason excused or unnecessary, such facts, and not a tender or offer, should be alleged,' but the court haus power to allow such amendment and permit the evidence to be given.' On a sale for cash it is not a sufficient tender of performance to offer the seller's note." The rule in such case is different from that where a debt is actually created, the debtor agreeing not to plead a set-off. On a sale for cash the seller is not bound to part with his property until a 'Meimers v. Bidner, 2 Rob. 11. Pettit, 16 0. B. 430, 81 Eng. 0. L. ) ; La- ' Bak67- V. Johnson, 3 Rob. 570, aflann- fwrge v. Mansfield, 31 Barb. 345. ed, 48 N. Y. 136. « Anderson v. Sherwood, 56 Barb. 66 2 Managan v. Demarest, 3 Rob. 173 ; ' Oakley v. Morton, 11 N. T. 35 ; see Bradley v. Wheeler, 4 Rob. 18. Baldwin v. Munn, 3 Wend. 399 ; Lara- * T!ie Congregation, etc. v. HalUday, way v. Perkins, 10 N. T. 371. 3 Rob. 386. 8 Hasley v. Black, 38 N.T. 438, 36 How. » Tidey v. Mollett, 16 C. B. N. S. 398, 97 ; Van Buakirk v. Stow, 43 Baib. 9. Ill Bng. C. L. (overruling Stratton v. ' Leven v. Smith, 1 Denio, 571. 406 COMPLAINT IN PAKTICIILAK CASES. [CH. IV A. compliance with the contract hy the' purchaser. If a contract be assigned, the tender must be to the assignee and not the assignor.' If one party is to do an act before the other is required to do something else, the failure or neglect of the former is a waiver of an offer to perform by the latter,^ as to prepare a building for mason work, ' to furnish plans and set out work ; ' otherwise if the party agree to do what shall be required by an architect ^^•ithin a given time, under a certain penalty for each day there- after if it was not completed, even though he require an impossi- bility, for it was the party's own foil}' to make such an agreement.* It seems to us, however, that the agreement to make such altera- tions as might be reqiiired should have received a reasonable construction, and to have been held to require such only as could reasonably and properly be made, after being required, within the time specified. If a contractor sustain damages by being compelled to pay higher wages in consequence of a building not being ready for his portion of the work by the time agreed upon, he may recover such damages.^ Although the vendor deliver the part of a lot of goods sold and the vendee accept them, the vendor cannot recover therefor without full performance or an offer thereof.' If one agree to make three models he cannot recover for one made and delivered without offering to deliver two more.' Play. — An action lies to restrain the exhibiting of a play written by the plaintiff;' and causing it to be publicly acted is not such a publication as will justify one in committing it to memory and printing or playing it.° So one has such a property in a painting that he may restrain the making or sale of copies thereof by photographing or ' Dustan v. McAndreio, 10 Bosw. v. Demtt, 5 Abb. N. S. 130, 80 How. 130 ; Cnok V. Kdleij, 9 id. 358. 233, 7 Rob. 530. The latter case, on a ' Tliovp V. Ross, 4 Keyes, 546. motion to dissolve an injunction, and ' Roherts v. Bur;/ Commissioners, L. the former, so far as it held one had a R., 5 C. P. 310, :!35, reversing same right to attend a theatrical representa- case, L. R., 4 C. P. 755. tion, commit the play to memory and " Jones V. St. John's Colln/e, L. R., 6 act it, was overruled in Palmer v. Queen's Bench, 134, 13r.. Dewitl. 40 How. 393. <> ylUamonv. 3fai/or, etc., -ioBiivh. S3. ^Palmer y. Deioitt, 2 Sweeny, 530 « Moses V. Banker. 3 Sweeny, 367. 40 How. 393, 47 N. Y. 533, an interest ■" Sharpe v. Jolinxon, 41 How. 400. ing and elaborately considered case. « Keene v, Clarke, 5 Rob. 38 ; Palmer >« Oertel v. Wood, 40 How. 10. CH. IV A. J COMPLAINT IW PAKTICULAR CASES. 407 Pledge.' — A court of equity has no general jurisdiction over actions to redeem personal property pawned without some other circumstances rendering its interference necessary. The remedy is ample by tender of the amount due and a possessory action to recover the articles pledged, or damages for their detention," except, perhaps, where the time to redeem has passed, ' or property, such as stock, is transferred to the name of the pledgee, and is not tangible.* The pledgee's right to foreclose the right to redeem the property pledged by a suit in equity is unquestioned." Prayer for relief." — A purchaser who seeks to set aside a transaction on the ground of fraud should specially pray in his bill for the repayment of repairs and improvements, if he desire to be allowed therefor.' Promise. — A promise by a debtor to pay his debt to a third person is valid and may be enforced by such third person.' Protest. — In an action against the acceptor of a bill of exchange made payable, in the body thereof, at a particular place and accepted generally, it is not necessary to aver or prove presentment at the place where it is so made payable." Publication. — The publication of the plaintiff's name on a register of protested paper will not be restrained," nor will the publication of any libel ;" but the publication of private or other letters will be restrained," and so one may maintain detinue for a letter sent to him." ^ Upon the subject, generally, see Bishop's First Book of the Law, §§ Edw. on Bailm., Story on Bailm., Met- 468-9. calf's note to Batdiff v. Dams, Telv. ' Mliott v. Melj/, 10 Irish Law Rep. 179 et seg. ; 2 Story's Eq. Jur., §§ 1030- 485, overruling Roaolie v. Johnnton, 1 1035, Smith's Man. of Eq.,lst Am. ed.. Law Rec. N. S. 100, Hayes & Jo. 246 ; 334-7. but see Werner v. Williams, 37 Barb. 9. ^ Durant v. Einstein, 5 Rob. 423, 35 " Fleming v. Newton, 1 House of How. 223;-ffaisfo'ns V. ir«B(3y,lRob. 160. Lords' Cas. 363 ; Adams y Leland, SO ' Smith's Man. of Eq. 337. N. Y. 309. ■' Stoker v. Goggswell, 25 How. 267. " Brandreth v. Lance, 8 Paige, 24. ' 2 Story's Eq., | 1033, " 2 Story's Eq. Jur., § 944 ; Woolsey v. * Upon the subject, generally, see Judd, It Row. 4=9,4 I>uei, 379 ; M/re v. Sto. Eq. PI., Daniell's Ch. Pr., 4th Am. mgbie, 15 How. 45, 32 id. 199 ; Folsom ed. ; 1 Barb. Ch. Pr. 37-40, and Index, v. Marsh, 2 Story, 100 ; but see Wet- title "Bills;" Adams's Eq., notes to moi-e v. Scovill, 3 Edw. Ch. 515 ; Hoyt Voorhies' & Wait's Codes, § 142. v. McKenzie, 3 Barb, Ch. 320 ; Brand- ' Kerr on Frauds and Mistakes reth v. Lance, 8 Paige, 24 ; 6 N. Y, Leg. (Eng. ed.), 279-285. Oba, 345 ; &ynY. Gaulfield, 3 McN, & * Lawrence v. Fox, 20 N, Y. 368 ; Gord, 468 ; Prince Albert v. Strange, 1 Connor v. WiUiams, 2 Rob, 46 ; Thorp McN, & Gord. 25. V. Keokuk, 47 Barb. 439 ; see Moak's " Oliiier v. Oliver, 11 C. B. N. S. 139, note to Clarke's Ch. 393, marg, p. 103 Eng. C. L. 408 COMPLAINT IN PAKTICULAE CASES. [^H. IV A. Quia timet.' — When a deed has been delivered so as to vest the title in the grantee, a mere surrender thereof will not revest the title, and a bill q^iia timet will lie to quiet the title which was intended to be so revested.'' An action will not lie to set aside pi'oceedings of a subordinate tribunal, void at law, or for restraining or staying such proceedings.' Usually, to maintain a bill of peace, three things must concur : 1st. The plaintiff must have the actual possession of the premises. 2d. That pos- session must be disturbed. 3d. His right must have been pre- viously established at law." A bill lies to compel the surrender of an usurious security,^ and the bill should not be dismissed, after trial, simply because it does not offer to pay the amount actually due." A court of equity will, in many cases, decree the surrender of a void instrument, which may, after great lapse of time, be used to the prejudice of the plaintiff;' and it seems that this is so even where the instrument is void upon its face ;° although the rule is otherwise in an action to remove a cloud upon title." Quo warranto.'" • — Although a quo warranto is strictly an action at law, yet, if the parties do not object to its being tried as a suit in equity until after the case is opened, a jury trial is waived, and the objection cannot afterward be taken." Railroad. — If a servant takes his master's baggage by railroad as his own, the master cannot maintain an action for the loss thereof, as the company is under no obligation to take any baggage except belonging to the passenger himself;" but a servant who travels with his own luggage may recover although his master paid for the ' Upon tke subject of bills gaiffi iim«< ^ Hamilton \. Gumminga, 1 Jobns. and, also, those in the nature of bills Ch. 517 ; Briggs v. French 1 Sunin. quia timet, see Story's Eq. Jur., Adams's 504 ; but see Simpson v. Lord HowcLen , Bq. Jur., Smith's Man. of Eq. Ist Am, 3 Myl. & Cr. 97, 1 Keen, 583. ed. 396. « Ward v. Dewey, 16 N. T. 519 ; see « Fondas. Sage, 46 Barb. 109. Hatch \. City of Buffalo, 38 N.T.276. ^ Hyatt \. Bates,Za Barb. 308, 40 N. i° Upon the subject, generally, see Y. 164. Code, § 428, et seq., Met. note to Rex v. * Shepley v. Rangeley, Davies's Rep. Stanton, Yelv. 190, Bouv. Law Diet. 243, 349. title " Quo Warranto," Tidd's Pr., same ' Beeelier v. Ackerman, 1 Abb. N. S. title, 5 Burn's Just., 30th ed. ; 1 Estee's 141, 1 Bob. 30. PI. and Prac, title " Quo Warranto," * Beecher v. Ackerman, 1 Abb- N. S. Jacob's Law Diet., same title. 141, 1 Rob. 30 ; Sutherland v. Rose, 47 " People v. Albany, etc., 55 Barb. 344, Barb. 144. affirmed, 5 Lans. 35. '' Dams V. Duke, 2 Swanst. 105, and " Becker v. The Great Eastern, etc., ^ases cited in note L. R.,5 Queen's B. 241. CH. IV A.] COMPLAINT IN PAETICULAK CASES. 409 ticket.' If a servant is in one car, and the master, having tickets tor both, is in another and the cars are separated, the servant can- not be ejected.'' A railroad company which is about to lay its track in a public street or highway, may be restrained from so doing by an adjoining owner who owns to the center of the street or highway, until his damages are properly assessed and paid,"* or may maintain ejectment against the company f otherwise in the city of New York, where the title to the streets is in the corpora- tion.' A railroad company is not liable for baggage left in his seat by one wrongfully ejected," nor for baggage left in his seat by a passen- ger on getting out, he negligently failing to find the same carriage on the train starting.' ISTor for an overcoat left in his seat by a passenger,' unless it came to the possession of some of the agents of the company." Reasonalble time.'" — In many cases where the time for the performance of an act is not fixed, the law declares it shall be done within a reasonable time according to the circumstances, although circumstances in the nature of an excuse for a delay which are not shown to have been mentioned when the contract was made, nor then known, or presumable to have been known to the other party, cannot be considered in determining what should be deemed a reasonable time." In such cases the complaint should allege that the plaintiff duly performed or offered to per- form on his part, or that, although a reasonable time had dapsed, the defendant has failed and neglected to perform or do the act ' Marshall v. Tork, etc., 11 C. B. 655, " Glover v. London, etc., L. R., 3 73 Eng. C. L., 7 Eng. L. Eq. 519. Queen's Bench, 35. ' Jennings v. Great Western, etc., L. ' Talley v. The Great, etc., L. E., 6 R.,1 Queen's B. 7. G. P. 44. ' Graig v. Rochester, etc., 39 N. Y. * Tower v. Utica, etc., 7 Hill, 47 ; see 404, 39 Barb. 494 ; Wager v. Troy, etc., Mudgett v. Bay State, etc., 1 Daly, 151. 25 N. Y. 527; Williams v. If. Y. Cent. » Morris v. Third Av., etc., 1 Daly, R. R., 16 id. 97 ; EeUey v. Zing, 83 305. How. 39 ; Mlieottmlle, etc. v. Buffalo, '° Upon the subject, generally, see etc., 30 Barb. 644 ; People v. Law, 34 Add. on Cont., 6th Eug. ed.,943 ; Benj. id. 494 ; see Heath v. Barmcm, 49 id. on Sales, 505, 510, 519, 525 ; 3 Pars, on 496. Cont., 5th ed., 535, 661 ; Smith's Man. * Perrin v. N. T.,etc., 36 N. Y. 120 ; of Com. Law, Isi Am. ed., 88 ; 3 Conw. Carpenter v. Qswego, etc., 24 id. 655. Eob, Prac. 611 ; Estee's PI. and Pr., ^People V. Kerr, 27 N. Y. 188, 37 title "Time;" Voorhies' Code, § 143, Barb. 357, 38 id. 369, 35 id. 258 ; note g, 10th ed. ; 1 Taylor's Ev., § 38, Kelsey v. King, 33 How. 39 ; People v. et seq. Law, 34 Barb. 494 ; JSF. Y., etc. v. Forty- " New Haven, etc., v. Quintard, 6 " etc., 33 How. 481, 36 id. 68. Abb. N. S. 138, 1 Sweeny, 89. 52 410 COMPLAINT IN PARTICULAE CASES. [CH. IV A. required. Thus, where the time for the delivery of goods sold is not specified, it is a presumption of law that the parties intended and agreed that they should be delivered in a reasonable time.' So where the time for the delivery of goods has been indefinitely extended, the time for performance is never indefinitely extended by operation of law." Where the time for performance has been indefinitely extended, the right of either party to sue depends upon a demand and tender of performance on his part.' But where a party agreed to deliver " as required," it was held no defense by the buyer to an action for non-delivery " as required " that he had not requested delivery within a reasonable time. If the vendor wished to get rid of his obligation because of uurear sonable delay in. taking the goods, it was for him to offer delivery, or to inquire of the buyer whether he would take the goods, and he had no right to treat the contract as rescinded by mere delay.* Where an act is to be done on demand, the party on whom the demand is made has a reasonable time thereafter in which to comply,'' and so where a party covenants to pay 'Hmmediately on demand," ° or " at once and without delay." ' A promise to pay " when convenient " is a promise to pay within a reasonable time ; ' otherwise when the promisee " is not to compel payment but to receive it when convenient for the promisor." Where a reserva- tion of timber and all necessary facilities for removing the same was made by a grantor, it was held, that if anytime could \)efia>ed by the grantee, or by a judicial tribunal, within which the power of removal was to be exercised, it should be in the future by a notice to the grantor to exercise his power of removal within some specified time, and he could not be deprived of it by an allegation that a reasonable time for removal had elapsed." Receiver." — The abatement of a suit in equity does not operate to divest a receiver of his rights." The receiver of an ' Jones V. Fowler, 37 How. 104. ' Sharp v. Johnson, 41 How. 400. ' Newton v. Wales, 3 Rob. 453. » 14 Ohio St. R. 88, 10 id. 88, Edw. ' Newton v. Wales, 3 Rob. 453. on Prom. Note.s, 154, note 4. * Jones y. Oibbons, 8 Exch. 920. ' Barnard v. Gushing, 4 Mete. 330, « Brightly v. Norton, 3 Best & Smith, 234. 305, 113 Eng. C. L. " Qregg v. Birdsall, 53 Barb. 402. ^ Toms V. Wilson, 4 Best & Smith, " Upon the subject, generally, see 443, 454, ll'j Enff. C. L. ; Butler's case, Voorhiea' Code, § 143, note/, 10th ed., 3 Coke, 286; hui sae Schooner Onrust, p. 153 ; 1 Estee's PI. and Pr., 363-4; 1 Benedict, 445 ; Duncan v. Topham, 8 Edw. on Receivers, Kerr on Receivers, C. B. 335, 65 Eng. C. L. Wat. on Inj. 854-8; Kerr on Inj., 3 CH. IV A.J COMPLAINT IN PAKTICULAR CASES. 411 usurious borrower may sue to recover an excess of interest paid by such borrower ; ' so the receiver of an insolvent insurance company may recover back its capital or property distributed among its stockholders,^ and may, in the same suit, restrain creditors of the company from proceeding individually and separately against such stockholders.' An order appointing a receiver will not vest in him the title to any part of the income of a fund bequeathed by a testator wliereof the income was to be paid to the debtor, after the date of his appointment, although the bequest was made before that time.* It is not very clear what rights in a fund bequeathed or given to the debtor for the support of himself or family a receiver takes.' It has seemingly been held that he takes the surplus, if any, if the debtor created the trust,' and so, if created by a third person, provided the complaint allege the existence of such sur- plus,' but this has been controverted in ISTew York under the statutory provisions upon the subject.' A receiver takes the earned but not the unearned perquisites of an otEce." So it has been held that a receiver takes a judgment recovered for exempt property," but the contrary has since been held ; " otherwise if, after the money is received, it be invested in property not exempt." Redemption." — After default in the payment of a chattel mortgage, the mortgagor's only remedy is by a suit to redeem. He can, under no circumstances, maintain an action at law against Story's Eq. Jur., §§ 839-838 ; Adams's « Campbell v. Foster, 35 N, T. 361 ; Eq., Smith's Man. of Eq., 1st Am. ed., Rome Bxch. Bank v. ISames, 1 Keyes, 435-6 ; Daniell's Ch. Pr., 4th ed„ 1 589, 603, 604. Barb. Gh. Pr. 658-674. ' McOoun v. Dorsheimer, Clarke's ' Woods V. Creagliie, 1 Hogan, 174, 1 Oh. 144. Barb. Ch. Pr. 678. i» Mallory v. Norton, 31 Barb, 434. ' Palen v. Johnson, 46 Barb. 31. " Lafarge v. Herter, 9 N. T. 341 ; ' Osgood V. Laytin, 37 How. 63, 3 Andrews v. Rowan, 38 How. 126 ; Til Keyes, 531. lotson v. Wolcott, 48 N. Y, 188. ■* Graff V. Bennett, 3 Rob. 54, 31 N. " -^ygant v. Smith, 3 Lans. 185. Y. 9 ; Glute V. Bool, 8 Paige, 83 ; '* Upon the subject, generally, see Bryan v. Knickerbocker, 1 Barb. Ch. 2 Story's Eq. Jur., g§ 1014-1020, 437; Donovans. i?'ira7i, Hopk. 59. 1030-1035, »; Story's Eq, Pl,,g§ 182- ^ Harms v. Healey, 15 Barb. 396; 204; Seton's Decrees, 144-153, wMci/.p,; 8teio(wt V. Foster, 1 Hilt, 505, 1 Pars. Smith's Man, of Eq. 318, 329, 335-7 ; on Gont., 5th ed., 343, and note. Adams's Eq. 113-120, 390 ; Moak's " Bryan v. Knickerbocker, 1 Barb. Notes to Clarke's Ch. 15, marg. p. Cb. 409. ' a-raff Y. Bennett, 31 N. Y. 9, 35 ; Bider v. Mason, 4 Sandf. Ch. 351. 413 COMPLAINT IN PAETICULAE CASES. [CH. IV A. the mortgagee, and an action for damages in fraudulently or unfairly selling the mortgaged property will not lie. But the mortgagee can only extinguish the mortgagor's equity of redemp- tion by a suit to foreclose, by a sale pursuant to the mortgage, or possibly by great lapse of time.' Where the mortgagee is fore- closing for more than is due, the mortgagor may maintain an action to determine the amount due and to redeem. If the mort- gagor have died, the action should be brought by his heirs and also his personal representatives,^ and technically the plaintiff should offer to pay whatever is found due to the defendant. ° If the mortgagor have conveyed a portion of the premises, his grantee is entitled to redeem, but he is not entitled to an absolute deed of the whole mortgaged premises.' A second mortgagee may redeem a prior mortgage and be subrogated to the mortgagor's rights thereunder,' and so may a judgment creditor before sale on his judgment." A mere surety is not entitled to redeem.' A mortgagee is entitled to payment in full before he can be required to surrender possession, but if the statute of limitations has run in favor of some of the debtors, the others may redeem their por- tions on payment of their portions of the indebtedness.' The mortgagee is not entitled to charge for erections if he knew of the mortgage ; otherwise if he have in good faith disavowed the character of mortgagee, and claimed in hostility to such a character.' In an action, after an attempted foreclosure, to redeem, the grantees of the purchaser are necessary parties, and are to be treated as assignees of the mortgage, and the redemption money is to be distributed between them on the basis of their purchase." If a mortgage be given, and the mortgagor afterward marry, the wife cannot maintain an ejectment against a purchaser undei a foreclosure of the mortgage, to which the wife was not a party ; • Stoddard v. Hennison, 38 How. * Pearce v. Morris, L. R., 5 Cli. App. 296, 3 Sweeny, 55. 327, 330. ^ Sutherland v. Rose, 47 Barb. 145 ; ' Jenkins t. Continental Ins. Co., 12 Western Reserve B'k Y.Potter, GliLTke'a How. C6 ; Pardee v. Van Anken, 3 Oh. 433. marg. p., and cases cited in Barb. 534, 6 N. Y. Leg. Obs. 378. Moak's notes ; Beaeli v. Oook, 39 B. 360, '' Dauehy v. Bennett, 7 How. 375. 28 N. Y. 508 ; Silsltee v. Smith, 41 How. ' EUsworth v. Lockwood, 42 N. Y. 89, 418. « Fogal v. Pirro, 17 Abb. 113. 2 ^Isbee V. Smith, 41 How. 418 ; but ' Dam v. Duffie, 18 Abb. 360, 8 Bosw. Bee cases cited in last note. 617, 691, 3 Keyes, 607. CH. IV A.] COMPLAINT IN PARTICULAR CASES. 413 her remedy is by an action to redeem.' If the holder of a second mortgage be not made a party to a foreclosure of the first, he may redeem the rights of the owner of the first without paying the costs of its foreclosure, and may foreclose his own mortgage.' An irregular sale, though it does not bar the equity of redemption, operates as an assignment of the mortgage ;' and where the owner ol the equity of redemption is insolvent, no presumption of payment arises from the lapse of time." The owner of a prior mortgage, in possession of the morgtaged pi'emises, is not liable to an action of ejectment by a purchaser on the foreclosure of a subsequent mort- gage ; the only remedy of the latter is by an action to redeem.' In an action to redeem, the party is usually given six months to do so.' Reformation of contracts/ — Mistake as to a contract is a ground for equitable relief, but it must be a mistake of fact, not of law. Mutual mistake as to its construction will not entitle either party to relief in equity.' The rule is probably otherwise when one party knows the law, and intentionally misleads the other, for that is an active fraud ;° and where the law is well settled and not doubtful, the court is prone to find such to be the case ;'° otherwise where the law is in doubt. Although when a reformation of a contract is sought the mis- take must be mutual, '' for the reason that the court will not make the parties agree to what they did not mutually intend ; the rule is different where one party desires to rescind or be relieved from a contract which he entered into under a mistake of facts, for the minds of the parties do not meet." In order to reform a contract ' Smith V. Gardner, 43 Barb. 356, to Clarke's Cli'y, 43, raarg. p., where Moak's notes to Clarke's Ch. 252, the recent cases will mostly be found ; ma/rg. p. Kerr on Fraxids and Mistake, 1st Eng. ^ Feabody v. Bdberts, 47 Barb. 93 ; ed., 338-386 ; see also note to Alexan- &age v. Brewster, 31 N. T. 218, Moak's der v. Oroahie, Lloyd & Gould, 149, notes to Clarke's Ch. 252, marg. p. Banks's ed. ' Brdbst V. Brock, 10 Wall. 519 ; Bob- ^ Midland, etc. v. Johnson, 6 House inson v. Byan, 25 N. T. 320 ; Oage v. of Lords' Cases, 798. Brewster, 3 id. 337 ; Stewart v. Hutdi- ' Moak's note to Clarke's Ch'y, 42, inaon, 29 How. 181, Moak's notes to marg. p. ; Story y. Conger, 36 N.Y.Q73. Clarke's Ch. 353, marg. p. '" Note to Atwood v. , 5 Russell's * Brdbst V. Brock, 10 Wall. 519. Ch'y, 150, Banks's ed. = Wella V. Pierce, 3 Keyes, 103, 33 " Moak's notea to Clarke's Ch'y, 42, How. 421. marg. p.; Mills v. Lewia, 37 How. 418, s Bolles V. Duff, 41 How. 355. 55 Barb. 179. ' Upon the subject, generally, see 1 " Smith v. Mackin, 3 Alb. Law. Jour Story's Eq. Jur., §§ 152, 169, Smith's 471-472 ; Mills v. Lewis, 37 How. 418 Man.of Eq.,l3tAm. ed., 49, 55, Adams's 55 Barb. 179. Bq. 84-85, 90, 166, 174, Moak's notes 414 COMPLAINT IN PAETICULAB CASES. [CH. IV A. it should be made clearly to appear what the real contract was. Its terms must be definite and precise ; it will not answer for a party to call upon the court to spell out a contract or to impose one upon the parties which they did not intend to make ;' but where the contract was vague in its language a court of equity, having regard to the terms of such agreement, will consider the surround- ing circumstances and conduct of the parties in dealing with the property comprised in it, in the interval between the making of the agreement and the commencement of the suit. A contract to finish a house as desired and directed by " A " is sufiiciently definite if the dimensions, style, etc., be arranged and partially carried out." The court will reform a contract on a bill filed by an assignee.' Where the parties upon the conveyance of a lot 120 feet deep " to and including a stable on the rear of the premises," both supposing 120 feet would include the stable, but that depth only included a portion of it, the court refused to reform the contract, and order a conveyance of the remainder although the defendant owned it.' Where the terms of an agreement were broad enough to include a fund unknown to either of the parties, there being no fraud the court refused to reform it.' Where a conveyance of real estate is delivered in accordance with the terms of a prelimi- nary contract, a complaint which asks a reformation of the con- veyance should also allege the facts showing the plaintiff is entitled to a reformation of the preliminary contract, and praying a reformation thereof." Religious society.' — Individuals claiming to be trustees de facto of a religious society cannot maintain an action against those in the actual possession of its lands and house of wor- ship.' Trustees of an incorporated religions society cannot sue as such except by the corporate name or title of the society ;' nor will an action lie to eject a clergyman from a pulpit.'" ' Moak's note to Clarke's Ch'y, 42, ^ Hawkins v. Jackson, 3 MacN. and marg. p., Kerr on Frauds and Mistake, Gordon 373. 350, 1st Eng. ed. ' Ohristianson v. Linford, 3 Rob. 2 Oxford V. Proband, L. E., 3 Privy 315. C. Cases 135. ' Upon tlie subject, generally, see 2 Bentley v. Smith, 8 Keyes, 343. Tyler's Ecclesiastical Law, and Hoff- ' WJiite V. Williiims, 48 Barb. 333. man's Ecclesiastical Law. Ingraham, J., dissented, and we are * Bundy v. Birdsall, 29 Barb. 31 ; inclined to think bis opinion the Parish v. Tooker, id. 256. Bounder one. See cases cited in Moak's ' Bundy v. Birdsall, 29 Barb. 31. notes to Clarke's Ch'y, 42, marg. p. " Youngs v. Ransom, 31 Barb. 49, CH. IV A.] COMPLAINT IN PARTICULAR CASES. 415 A trustee of a religious society cannot be sued, by his co-trustees, as a trespasser, in respect to the property of the society until he has been divested of his character and authority as a co-trustee. His possession is the possession of his co-trustees, and his right equal to that of the others. A majority of the trustees cannot by rule or resolution, which they may adopt, exclude one of theii number, and so divest him of his rights as to make his subsequent act of obtaining possession of the trust property a tort.' The court will not appoint a receiver of such a corporation except in rare cases.^ Eent.^ — In an action due for rent upon a written lease, exe- cuted by two of four defendants, parol proof of the existence of an understanding between plaintiff and all the defendants to tlie effect that the lease should be executed by the two first-named defendants for the benefit of a copartnership to be formed between all the defendants, which partnership was subseciuently formed, is not admissible for the purpose of fastening an original liability under the lease upon all the defendants. A defendant will not be held liable for rent as equitable assignee, upon the ground of privity of estate existing between him and the lessor, unless charged as such in the pleadings.* A demise to a third person of premises in possession of a tenant under a valid lease is void. It is neither effectual to disturb those in possession, nor to enable the lessee to evict them, and is no defense to an action for rent upon the original lease. A lease, signed as agent for the lessor, by a person not having authority in writing, cannot create the estate purported to be created in it, and is void by statute.' In the city of New York, a tenant who holds over and continues in posses- sion of premises leased to him at a certain rent, with the assent of the owner, after the expiration of the term, without any new agree- ment as to the rent, becomes a tenant from year to year and liable for the rent at the same rate, up to the first of May next after such tenancy commenced." Rent which falls due after the death of a case involving many principles of Conts., Smith on Cents, and CMtty on ecclesiastical law. Conts. ' Trustees, etc. v. Stewart, 37 Barb. * Mason v. Breslin, 9 Abb. N. S. 427 553. 2 Sweeny, 386. * Groesieekv.Dunscomb, 41 How. 305. ' Post v. Mortons, 2 Rob. 437. ^ Upon the subject, generally, see * Witt v. Mayor, etc., 5 Rob. 248. Taylor's Landlord and Tenant, Pars, on 416 COMPLAINT IN PAKTICULAR CASES. [CH. IV A. the landlord goes to the heir and not to the executor, although chattels were included in the lease.' Though rent must be demanded before sunset to take advantage of or save a forfeiture, yet it is not due until midnight ; and, therefore, if the lessor dies after sunset and before midnight, the rent goes to the heir and not to the executor;' otherwise if the lessee be a.I>are tenant for life; for then, if he live until the beginning of the rent day (at which time a voluntary payment of the rent might be made), that is suf- ficent to entitle the executor to the rent rather than it should be lost.^ A lessor who assigns a lease after rent has become due may recover it of the lessee, for that does not pass by the assignment as an incident to the estate.* An under-tenant is not liable to the lessee for the rent, but an assignee of the lease is ; and the law presumes that one who occupies is an assignee. " A lessor cannot recover upon a complaint for use and occupation when it appears from the evidence that there was a lease of the premises to other parties, and that the defendants were in as assignees of the term. But in such case the court may, on the trial, allow an amendment of the complaint to conform to the proof and permit a recovery for the rent due on the lease when it does not appear that the defendants are surprised by the amendment." Although an assignee of a lease is liable for the rent which falls due after the assignment,' still he is not liable for the rent of a new story put on after the original lease under a new agreement, although the use of the story passes by the assignment.' The assignee of the lessor is entitled to recover rent falling due after the assignment." If the assignor of the lease reserve a single day of the term, the assignee is an under-tenant and not liable for the rent." As soon as an assignee assigns he ceases to be liable." ' Fay V. Ualloran, 35 Barb. 295. v. Hammett, 13 id. 25-3. 18 id. 608 ; ^ Duppa V. Mayo, 1 Saund. 287, see Main v. Feathers, 21 id. 646 ; Van note 17, p. 288 e (6tli ed.) Rensselaer v. Bonesteel, 24 id. 365 ; ^ Ditppa V. Mayo, 1 Saund. 288 e DemainviUe v. Mann, 33 N. T. 197. (6tli ed.) s Goit v. Braunsdof, 3 Sweeny, 74. ■' P/ieZps V. Far!.i)MS«?i,4Trans. App. ^ Main v. Feathers, 31 Barb. 646; 399. Van Wicklin v. Paulson, 14 id. 654 ; 5 Bedford v. Terhune, 30 N. Y. 453, Marshall v. Moseley, 21 N. Y. 380 ; Fay Goit V. 'Planer, 4 Abb. N. S. 140, 7 Rob. v. Hollerain , 35 Barb. 395. 413,2 Sweeny, 78, i» Duns v. MorrU, 35 Barb. 337, 36 » Bedford v. Terhune, 30 N". Y. 458, N. Y. 579. 27 How. 423. " Viinxehnaick v. Third Av. R. R., 25 ■< Ora/ues v. Porter, 11 Barb. 592 ; Van How. 440 ; Lufke v. Koch,dl id. 383. Rensselaer v. Hniith, 27 id. 104 ; Garter CII. IV A.J COMPLAINT IN PARTICULAR CASES. 417 An action for use and occupation lies when the defendant has actually occupied the premises under the relation of tenant to the plaintiff/ although there need not have been a manual occupation by the tenant if the landlord gave him the power to occupy the premises.^ Replevin.' Request.' ReTersioner.' — The owner of a chattel which is out on hire may maintain an action on the case against a third person for an injury thereto," biit trover will not lie for the conversion of a chattel under such circumstances.' The owner of lands in the occupation of a tenant may maintain an action on the case against one who digs up the soil and removes portions of it, or does other permanent injury, and the tenant may maintain a separate action for the injury to his rights." A landlord may, during the term, maintain an action against the tenant for an injury committed by him to the freehold," but in order to entitle a reversioner to maintain an action for an injury to his reversion, it is necessary that the wrong complained of should be in its nature permanent. He cannot maintain an action for loud hammering and noises adjoining the premises by reason whereof the tenant quitted, although it appeared that he was afterward unable to let the house except at a lower rent.'" The sale of his interest by a reversioner will be set aside in equity upon proof that the amount paid was disproportionate to the value thereof." Reward. — Although a sheriff or other officer is prohibited by statute from taking or receiving any greater or other fee or reward for services rendered than such as are allowed by law, a sheriff who goes to another State and arrests a party, for whose ' Coit V. Pla/ier, 4 Abb. N. S. 140, 7 « Mears v. London, eta., 11 C. B. N. S. Rob. 413, 3 Sweeny, 78. 850, 103 Eng. C. L. = Hall V. Western, etc., 34 N. T. 284. ■> Gordon v. Harper, 7 T. R. 9 ; Tcm- ' See ante. Claim and Delivery. cred v. Allgood, 4 Hurl. «& Norni. 438. * See ante, title Demand, 3 Conw. * Rogers v. Taylor, 1 Hurl. & Norm. Rob. Prac. 445-6, 600-605. 706 ; Vandusen y. Young, 39 N. T. 9. ' Upon the subject, generally, see ' Eay v. Ayers, 5 Duer, 494. Add. on Torts, title Reversioner ; Hill. '" Mumford v. The Oxford, etc., 1 on Torts, Story's Eq. Jur., 1 Smith's Hurl. & Norm. 35. Man. Com. Law, 96, 1st Am. ed. " Edwards y. Burt,2 De Gex,McN. & Gord. 55, and Perkins' note to Am. ed. 53 418 COMPLAINT IN PAETICULAE CASES. [CH. IV A. apprehension a reward was offered by an individual, on a requisi- tion from the governor of this State, may recover the reward ;' so, if a sheriff, who has no process, in reliance upon a reward, captures a criminal he may recover it f otherwise of a promise of a reward to an officer holding a warrant for the apprehension of a criminal.' One who employs another as his servant to arrest a party to whom a reward is offered may recover it of the servant if received by him.* The person who gives ^eji/rst information, no matter to whom, which leads to tracing the apprehension and conviction of the offender, is entitled to the reward," no matter what the motive ;" and one who avails himself of information received from another is not.' But where the reward was offered to "whoever should gwe such information as should lead to the early apprehension of the guilty parties ;" held that the information must be given not in mere conversation, but with a view to its being acted on, either to the person offering the reward or his agent, or to some person having authority by law to apprehend the criminal. And where the communication was first made by the plaintiff to C in conversation, but the information was afterward given to a con- stable jointly by the plaintiff and C, it was held that both ought to have joined in the action.' Where a jewehy store had been broken open, watches and jewelry stolen, and the defendant advertised " a reward will be given to any person who will give such information as shall lead to the apprehension and con-faction of the thieves, in about a week R brought one of the watches to the plaintiff's shop, the plaintiff gave information and E. was apprehended the same day with another of the stolen watches upon him. After two or three days E, being in custody, told the police that some of the thieves would be found at a certain ' Oregg v. Pierce, 53 Barb. 387 ; ^ Tliatclier v. England, 8 C. B. 354, England v. Davidson, 11 Ad. & Ell. 54 Eng. C. L. ; Lancaster v. Walsh, 4 856, 39 Eng. C. L. R. ; Smit?i v. Moore, Mees. & Welsb. 16 ; Jarndrin v. 1 C. B. 488, 50 Eng. C. L.; Present v. Exeter, 48 N. H. 85. 2 Edw. 95 ; Pilie v. Now * Williams v. Garwardine, 4 Bam. Orleans, 19 La. Ann. 274. & Ad. 631, 24 Eng. C. L. ^ Davis V. Munson, 43 Vt. 676, 5 Am. ■" Thaeher v. England, 3 C. B. 254, Eep. 315 ; Russell v. Stewart, 44 Vt. 54 Eng. C. L. 171. * LockTiart v. Barnard, 14 Mees. & 3 Smith V. Whilden, 10 Barr. 49 ; Welsb. 674, 4 N. T. Leg. Obs. 77 ; Downs V. McGlynn, 3 Hilton, 14. Lancaster v. Walsh, 4 Mees. & Welsb. ■* Prwitt V. Miller, 8 Ind. 16 : Marking 16. V. Needy, 8 Bueh (Ky.), 23. CH. IT A.] COMPLAINT IN PAETICXJLAR dASES. 419 shop, and there they were apprehended a week afterward and subsequently convicted. In an action by the plaintiff for the reward, the jury having returned a verdict in his favor, held that the information given by the plaintiff was not so remote as that it could not be said to have " led " to the apprehension of the thieves, and that the judge had properly left the evidence to the jury pointing out the remoteness of the information.' Where an advertisement respecting a stolen child promised a reward to the person who would give information where the child was, so that he might be restored to his parents, and the plaintiff com- municated to the defendant her suspicion where the child was, in order to put the matter into his hands for his benefit, if he chose to run the risk, and the child was afterward restored to its parents by the exertions of the defendant, acting upon the plain- tiif 's communication, held that the plaintiff could not recover from the defendant, to whom the reward had been paid, either the whole or any portion of it.° Where the common council of a city passed a resolution that a reward be offered to any person who shall give information so that any person shall be convicted of setting fire to any building for the purpose of burning the same, "and the next morning an advertise- ment was published reciting that several houses and other buildings had been recently set on fire and offering a reward" to any person who shall give information so that any perpetrator of these outrages shall be convicted ; held that the resolution and advertisement were to be construed together as parts of the same transaction, and that, by the true construction thereof, the reward was offered for information that would lead to the conviction of offenses previously committed, and not offenses thereafter committed.' A police constable appre- hended a boy having in his possession a horse and gig under circum- stances of suspicion and, discovering that the boy had absconded with them from Woolwich, gave notice to his superintendent, who, within a reasonable time, gave notice to the defendant, the. boy's master. After the boy's apprehension, but before the master ' Tn/rner v. Walker, Law Rep., 1 ^ Fallick v. Barber, 1 Maule & Queen's Bencli, 641, affirmed in Exch. Selwyn, 108. Chamber, L. E., 2 Queen's Bencli, 301. ' Freeman v. Oity of Boston, 5 Mete. 56. 420 COMPLAINT IN PABTICULAE CASES. [CH. IV A. received notice thereof, the latter had issued an advertisement, offering a reward of ten pounds to anyone who would give such information as should lead to the recovery of the property and the apprehension of the thief. Held, that a plea, charging the police constable with a breach of duty in neglecting to inform the defend- ant of the boy's apprehension until after the issuing of the adver- tisement, was an answer to an action by the constable for the reward. ' Where H. made a written agreement with F. that in case F. could recover certain bonds fraudulently obtained from H., he would pay $3,000 ; and F. and the police notified H. that the bonds had been recovered and were subject to his order, and they did not pass through the hands of F. : held, in a suit by F. against H. to recover the $3,000, that it was incumbent on F., in order to show that he recovered the bonds within the meaning of the agree- ment, to show that the police recovered them through information furnished by him ; and that it was not enough for him to show that he sent communications on the subject to the police before the bonds were recovered, it appearing that the police had received other communications on the subject as well as one from H., before the bonds were recovered." If a person dealing at a bank acci- dentally leave an article on a desk, in the banking-room, and then publishes an advertisement describing it as lost, and promises a reward to the finder upon returning it, another person who, while dealing at the bank, discovers and takes it, is not entitled to the reward upon returning it to the owner, although the desk stood outside the counters of the bank officers, in an open space, accessi- ble to all persons entering the room.' One who offers a reward is liable therefor, although he have no interest in the matter.* The defendant's horse having been stolon, he offered a reward of $50 for the detection of the thief. The plaintiff informed him that D. was the thief, and gave some information tending to sustain this charge, and the defendant had D. arrested therefor. Held prima facia evidence to sustain a recovery for the amount of the reward without showing D.'s conviction on the charge. If D. had been acquitted or released, or if the charge made against him was unfounded, it devolved on defendant to ' mville V. Kelley, 13 G. B. N. S. 740, ' Kinoaid v. Eaton, 98 Mass. 139. 104 Eng. C. L. - Farman v. Parker, 1 N. J. 310. « Franklin v. Seiser, G Blatchf . 426. OH. IV A.] COMPLAINT IN PAETICULAE CASES. 421 show the fact to rebut the presumption arising from his arrest on the plaintiff's instigation.' The sheriff of a county offered a reward of $250 for the discovery and apprehension of the murderer of B. Plaintiff, a constable, without warrant arrested one who was afterward tried for the offense, convicted and executed. M. claimed part of the reward. Plaintiff and M. submitted their claims to the board of supervisors who awarded plaintiff $150 and M. $100. Plaintiff took his order for $150 under protest and drew the money,, M. drawing $100 on his. In an action by plaintiff against the sheriff, held, that plaintiff' and M., having referred their respective claims to the board of supervisors, and consented that the board should settle their respective rights to the reward, and the board having settled those rights, and the plaintiff having received the amount to which, by the decision, he was entitled, he had no further claim against the defendant.'' Where moneys had been obtained from several banks by forgeries, and they offered a reward of $5,000 for the apprehension of the forger and the recovery of the moneys, or a proportionate amount for any part thereof, both the appre- hension of the forger and the recovery of the moneys are con- ditions precedent to the payment of the reward.' The criterion for determining who is entitled to a reward is, who is the person that has acquired a knowledge of the facts necessary to the detec- tion or discovery of the thing stolen or lost, and has imparted such knowledge with the intent and for the purpose of bringing about a recovery or restoration of the property, taking upon him- self the consequences and risk of a failure, and acting with a view to the reward if his suspicions and disclosures are well founded and successful. In such a case the mere officer who acts in the discharge of his duty will not be entitled. A servant, whose information to a mistress may have given the first cause of sus- picion of a robber, will not be entitled to any part of the reward offered for the restoration of stolen property when such informa- tion was not given with an intention of inducing the mistress to act, or of the servant becoming an instrument toward its recovery. Where a bank was robbed, a reward was offered for the recovery ■ Brennan v. Haff, 1 Hilt. 151. ' Jones v. Phcenix Sank, 8 N. Y, 228. ^ Prentiss v. Farnham, 23 Barb. 519 ; see, also, Olinton v. Brown, 41 id. 236. 422 COMPLAINT IN PAETICULAE CASES. [CH. IV A. of the property and a proportionate sum for any part, and B., the keeper of a boarding-house, from information given by his wife, suspecting a boarder, states his suspicions to a police officer and requested him to go with him, and the police officer and others were led by B. into his house and the boarder' s trunk pointed out, which, on being opened, contained the money, held, B. was entitled to the whole of the reward." Where the defendant oifered a reward " to any person or per- sons who will give such information as will lead to the apprehen- sion and conviction of " a criminal, such reward is not payable to one who never saw the offer until after the apprehension of the criminal, and who did nothing tending to promote such appre- hension after the offer of reward was made, notwithstanding the apprehension was effected in consequence of information given by him before the reward was offered, and notwithstanding, also, that he was active in procuring and giving evidence and commu- nicating facts to the prosecuting officers, after such apprehension and on the trial, in the hope and expectation of receiving such reward. Such an offer proposes compensation for what shall be done thereafter, not for what has been done already ; and, unless information be thereafter given which leads to both apprehension and conviction, the reward is not payable.' Where a reward is offered to a particular class of persons — as bank officers — one not of that class who, with the approbation and encouragement of the.promisor, complies with the terms of the reward, is entitled to it.' Where a reward was offered for a parcel of bank bills which had been lost, it was held that the finder of a part was entitled to &jpro rata proportion of the reward.* The finder has a lien upon the property found, and may retain the possession until the reward offered is paid.° So one who finds property lost and necessarily expends money in preserving and storing it — as logs carried away by a flood," a sunken canal boat raised.' An offer of a 1 Gity Banlc v. Bangs, 3 Edw. Cli. 94. ' National, etc., v. Hart, 55 111. 63. ' Fitch V. Snedikar, 38 N. T. 248 ; '' 8y'm.7nes v. Frazer, 6 Mass. 344. Marking v. Needy, 8 Bash. (Ky.) 23 ; '> Sheldon v. Sherman, 43 Barb. 368, Marvin v. Treat, 37 Ckmn. 96, but see 43 N. Y. 484. Dawkins v. Sappington, 36 Ind. 199; 'Baker v. JSba^, 7 N. T. 555, 562, 7 Russell V. Stewart, 44 Vt. 170, that one Barb. 113. need not know of the reward when the ' Janvrin v. Exeter, 48 N. H. 84 ; services are rendered to entitle him to it. Horson v. Pike, 16 Ind. 140. CH. IV A. J COMPLAINT IN PARTICULAE CASES. 423 reward is a conditional offer, whicli may be revoked.' Its terms should be complied with within a reasonable time, in order to entitle one thereto/ In an action to recover a reward for the detection and conviction of an offender, the record of conviction, although presumptive, is not conclusive evidence of his guilt.' A reward may be recovered, of a town authorized to offer it, in an action of assumpsit. A reward promised by a jailer for informa- tion whereby a prisoner, who had escaped from his custody, might be recaptured, cannot be recovered by one who gave the required information, iut assisted in the escape, and withheld this fact at the time the reward was offered.* Sale.' — If the purchaser designates a carrier, and the goods, by mistake, be delivered- to another no title passes." A complaint which alleges that' plaintiffs sold certain goods to defendants, who threatened to return them on the ground that they did not answer the contract, and then without averring that plaintiffs refused to receive them, and claimed to hold defendants liable under the contract, notified them that plaintiffs would sell the merchandise and hold them responsible for any loss; that defend- ants sent the merchandise to the plaintiffs, who sold the same for the best price they could get and rendered an account of the sales, showing the amount due, is defective for not averring that defendants acceded to the plaintiffs' terms specified in the notice, nor that plaintiffs sustained any loss by a re-sale.' A contract for the sale of a certain number of Buenos Ayres dry hides, " to arrive by vessel or vessels within sixty days," is not confined to those arriving by the vendor's vessels, but includes any hides of the kind described arriving within the time limited by any vessels. The vendee upon proof that hides of the descrip- tion and number specified had arrived in vessels from Buenos Ayres within the sixty days, and were for sale in open market, is entitled to recover damages for a breach of the agreement ;' other- ' Loring v. City of Boston, 7 Met. 409. Story on Sales, Benj . on Sales, Chitty ^ Mead v. Oity of Boston, 3 Gush, on Gont., Pars, on Cont., Add. on Cont., 404 ; but see Burke v. Wills, 34 Gal. 60, Smith on Gont., Broom's Gom. Law, that it is no evidence the person con- Smith's Man. Com. Law ; and see this victed was the guilty person. chapter, post, title Vendor and Vendee. * Jam/orin v. Town of Exeter, 48 N. H. « Mills v. Lynch, 3 Eob. 42. 85. ^ &vXten v. Gronin, 3 Rob. 493. * Hassour r. Doe, 38 Maine, 45. ' Praser v. UurbecJc, 4 Rob. 179 ; ' Upon the subject, generally, see Fischel v. Scott, 15 G. B. 69 (80 Bng. G. 434 COMPLAINT IN PAKTICULAR OASES. [CH. IV A. wise of goods on a particular ship to arrive.' On a sale of an article " to be paid for if it works well," if it is useless and does not work well the purchaser is not liable though he do not return it or offer to do so'' on a sale, with the privilege of re-as- signing after a trial of the article ; the acceptance of the re-assign- ment is a waiver of the trial. So if, after the sale, the vendor promise to furnish the vendee with the means for a trial, the promise, thoiigh without consideration, is an answer to the want of trial ;" but if the vendor has made no such promise, the vendee must try the article within a reasonable time.* If one lend goods, to be paid for if damaged, and they are damaged, he may sue for goods sold and delivered.' A receipt for five barrels of fish, to be paid foi' when sold, imports a sale, and they will be presumed after a reasonable time to have been sold." K a sale be upon con- dition that the goods m§y be returned, they cannot be if their value be impaired by improper use ;' and if the property be returned by the vendee who conceals the injury, although the vendor can- not recover the contract price because of the rescission, he may recover the damages for the injury," if it occur through the fault or negligence of the vendee," provided it be secret and unknown to him when he accepted the return."" On a sale with privilege of return, the vendee is excused from returning if the property escape without his fault." An agreement to sell and deliver a crop of com, then growing on thirty acres, " to be delivered in mei'chantable order," is an agreement to sell only the merchantable corn which grows on the thirty acres.'" On an agreement for a cash sale, the vendee cannot tender the vendor's note." On a sale with a pro- viso that the title shall not pass until payment, if the vendor resume possession he cannot sell the article at private sale without L.) ; HaU v. Eawson, 4 Com. B. N. S. * McDonald v. Pierson, 38 Barb. 128. 85, (93 Eng. C. L.) » BrancM v. Nash, 1 Mees. & Wels. ' Fraser v. Harbeck, 4 Eob. 181 ; 545 ; Tyrwh. & Gr. 91G, and see Studdy Shields v. Pettie, 4 N. T. 122 ; Johnson v. Saunders, 5 B. & Cr. (1 1 Eng.C. L.) 683. V. McDonald, 9 Mees. k Welsb. 600 ; « McArthur v. Wilder, 3 Barb. 66 ; Reiners v. Bidners, 36 How. 393, 3 Depew v. Keyset, 3 Duer, 835 ; Hay Bob. 33 ; Lovett v. Hamilton, 5 Mees. ley v. Goldsmith, Peake's N. P. 56. & Welsb. 639 ; Ha/oemyer v. Cunning- ' Ray v. Thompson, 12 Gush. 381. ham, 35 Barb. 515 ; Vernede v. Weber, ' Goon v. Reed, 1 Hilton, 511. 1 Hurl. & Norm. 311. » HimtY. Wyman, 100 Mass. 198. ^ Grounsell v. Lamh, 1 Mees. & Wels. '" Lord v. Kenney, 13 Jobns. 219. 353; Coy sins Y. Paddonfi Cromp,,Mees. " Hunt v. Wyman, 100 Mass. 198. & Rose. 547, 5 Tyrwh. 535; but see " i/aTOiZto?i v. (?n»jyar(i, 84 Barb. 304, McDonald v. Pierson, 38 Barb. 138. 3 Keyes, 45. ' Toung v. Hunter, 6 N. Y. 303. '^ Lemn v. Smith, 1 Denio, 571. CH. IV A.] COMPLAINT IW PARTICULAR CASES. 425 notice to the vendee ;' and the vendee may at any time tender the deficiency when he is entitled to the property/ There is a seeming, but not a real conflict in the cases where a vendee accepts property under an executory contract for the sale thereof. In an executory contract to sell property of a particular descrip- tion, without warranty, the vendee must examine it within a reasonable time, ascertain the defect, if any, notify the vendor thereof, and offer to return it ;" otherwise if there be a warranty * or fraud." An agreement to make " three or four" models is satisfied by the making of three at the maker's option, provided the buyer do not direct that four be manufactured." Seduction.' — The action does not lie unless the relation of master and servant exists,^ except where the seducer fraudulently obtains the services of the female with intent to seduce her," and unless there be some loss of service or injury, however slight ;'° and it must be the immediate result of the seduction, and not of the detection thereof." Mere seduction, without pregnancy, ill health or injury, is not sufficient ;" but communicating a venereal disease, by which the servant was made sick, is ;" and an action for enticing a daughter from service, and having connection with her, will lie, although no sickness or pregnancy follow." The slightest service is sufficient," and the relation may exist where there is a right to command the services of the female, for, in such case, the relation constructively exists." The party seduced cannot maintain • Mallery v. Lord, 29 Barb. 454. ^ Ingerson v. Miller, 47 Barb. 47 ; ^ HutrMngs^.Mung6r,41'B3.T:\>.Z%Q. Dain^. Wyckoff, 7 N. Y. 191; White 3 Meed v. Bandall, 39 N. Y. 358 ; v. mUis, 31 id. 105. Fitch V. Carpenter, 43 Barb. 40 ; Dela- » Dain v. Wyckoff, 18 N. Y. 45. field V. De Grau, 8 Keyes, 467, 471, 9 '» Ingerson v. Miller, 47 Barb. 47. Bosw. 1 ; Weaver v. Wisner, 51 Barb. " Knight v. Wilcox, 14 N. Y. 413. 638 ; Leavenworth v. Packer, 53 id. " Ingerson v. Miller, 47 Barb. 47 ; 133 ; Gouston v. Chapman, 3 Bng. Rej)., Knight v. Wilcox, 14 N. Y. 413. and see Moak's note at end of the case. '' White v. NeWis, 31 N. Y. 405, 31 * Bust V. Eckler, 41 N. Y. 488 ; Vin- Barb. 379. cent V. Leland, 100 Mass. 433 ; Willard " Evans v. Walton, L. R., 3 C. P. 615. V. Merritt, 45 Barb. 397 ; Woodle v. " Lipe v. Eisenlord, 33 N". Y. 329, 739 ; Whitney, 33 Wis. 56 ; but see Hoklen Bagley v. Decker, 44 Barb. 577. V. Clancy, 41 How. 1. " Mulmhall v. Millward, 11 N. Y. 5 FiiZiart v. ifer-nW, 45 Barb. 295-7. 343; Clark v. Fitch, 3 Wend. 459; ^ Sliarpe v. Johnson, 41 How. 400. Oray v. Durland, 50 Barb. 100 ; lerry ' Upon the subject, generally, see v. Hutchinson, L. R., 3 Queen's Bench, Hilliard on Torts, Addison on Torts, 599 ; Mann v. Barrett, 6 Esp. 33 ; Sedgwick on Damages, Broom's Com. Bartly v. Bichtmyer, 4 N. Y. 38, 2 Law (4th Eng. ed.), 78, 848, Smith's Barb. 183. Man. of Com. Law (1st Am. ed.), 151, 415, and Moak's note, 3 Eng. Rep. 683. 54 426 COMPLAINT IN PARTICULAR CASES. [CH. I^r A. the action/ but if the seducer promised to marry the seduced, that fact, if alleged, may be shown in aggravation of damages." The relation of master and servant must exist at the time of the seduc- tion, and not of the lying-in. A mother cannot maintain an action for seducing her daughter during the life-time of the husband and father, although he die before the confinement of the daughter;' otherwise if the husband be dead when the daughter is seduced, or the husband be separated from the wife, and the daughter reside with her.* The right of action dies with the master, nor does it pass to an assignee.^ A stepfather with whom a daughter is residing, and to whom he stands in loco parentis at the time of her seduction, may maintain the action ;" otherwise if she reside elsewhere at time of the seduction.' A contract for future illicit connection is illegal, and it seems a past co-habitation, although not an illegal is not a sufficient consideration/ unless the instru- ment be under seal." A promise by the father of an illegitimate child, to the mother, that if she will abstain from affiliating a child he will pay for its maintenance, or to pay her for its maintenance if she will maintain it and keep their connection a secret, is valid,'" but an agreement by a father to the mother, to pay her a certain sum for supporting their illegitimate child, is avoided if the mother procure an order of filiation." Set-off." — An action to compel the set-off of mutual demands is, in many cases, a necessity in order to enable the practitioner to pro- tect the interests of his clients. Thus, on a motion to set off one judgment against another, the court will, in the exercise of its ' Hamilton v. Lomax, 26 Barb. 615 ; '" Broom on Com. Law (4t]i Eng. ed.) Pffijii T. .K-asie?', 3 Mass. 71. 333 note q; Linnegar v. Hood, 5 C. ■' HotehUns v. Hodge, ZS. Barb. 117; B. (57 Eng. C. L.) 437; Jennings v. WeUs V. Padgett, 8 Barb. 325; Kniffen Broion., 9 Mees. & Welsb. 496; Smith V. MeOonnell, 30 N. Y. 285 ; see 1 Bisli. v. Roche, 6 C. B. N. S. (95 Eng. C L., Mar, & Div., §§ 263, 265. 323. The ease of Croichurst v. Laverach, ^ George v. Van Home, 9 Barb. 523 ; 8 Bxch. 208, so far as it seems to hold Clarke t. Mteh, 2 Wend. 459. such an agreement to be without con- ^ Bagly v. Hieky, 44 Barb. 577 ; Gray sideratiou, is not good law. V. Durland, 50 id. 100. " Crowhurst v. Laverach,8 Bxch. 308. ' Howard v. Orowtlier, 8 Mees. & " Upon the subject, generally, see Welsh. 601. Waterman on Set-off, Barb, on Set-off, « Bracy v. Eibbie, 31 Barb. 273. 1 Story's Eq., *;§ 663^, 2 id., §§ 1430- ■' Bartly v. Biehtmyer, 4 N. T. 89, 1444 ; Smith's' Man. of Eq., 1st Eng. Smith on Cont. 178, note, marg p. ed.,359-360 ; Adams's Eq. 333, marg.p.; * Smith's Man. Com. Law, 1st Am. note to Whyte v. O'Brien, 1 Sim. & Stu. ed., 57-70. 551, Banks's ed. ; Moak's note to 3 Eng. ' Smith on Cont. 178, marg. p., note Rep. 638. to 5th Am. ed. OH. IV A.J COMPLAINT IN PAKTICULAE CASES. 427 discretion, protect the lien or right of an attorney,' but in an action the set-off will be ordered without regard thereto." The cases before the Code, holding that the costs of one suit would not be set off against the recovery in another,'' were founded upon the old doctrine, changed by the Code,* that the costs belonged to the attorney and not the party. So, in some cases, a set-off will be decreed, although both demands are not due. If the report of a referee or verdict of a jury be assigned before judgment, or if the client agree that the recovery shall belong to the attorney, the right to set off' never attaches." Insolvency alone is, in many cases, a sufiBcient ground for set-off." Sheriff. ' ■ — Where a sheriff is sued for a tort he need not be described or averred to be such ;° and where he sues or is sued, a simple averment that he is such, without showing when and how he was elected and qualified, is sufficient." He is liable for negli- gence in not serving or executing process, although the plaintiff's attorney do not notify him the defendant resides in the county, or of his place of residence, and if he had done so the loss might have been prevented.'" He and his deputy are jointly liable for a tort committed by his deputy, by color of office." And when sued for the tort of his deputy he need not be sued as such. His liability rests upon the relation of principal and agent." His sureties are also liable in such case — as where, assuming to act by virtue of an execution, he levies upon the property of a stranger. '^ He is liable for the surplus moneys on a partition or foreclosure sale, ' Martin v. Kanouse, 17 How. 146, 9 v. Young, 3 Rob. 672 ; Mooney v. Second Abb. 370 n ; Defiganerie x. Young, 3 Av. R. B., 18 N. Y. 368 ; Mich v. Gar- Rob. 671 ; Purchase v. Bellows, 16 Abb. diniere, 2 Keyes, 516 ; Ely t. Cook, 2 105; Moak's Notes to Clarke's Cb. 428, Hilt. 406. marg.p. « Smith v. Pelton, 43 N. Y. 419. * Nicoll V. NicoU, 16 Wend. 445 ; ■" Upon the subject, generally, see Martin v. Kanouse, 17 How. 146, 9 Crocker on Sberiffs, Hilliard on Torts, Abb. 370 n ; Defiganerie v. Young, 3 title Oflficers ; Addison on Torts, title Rob. 671 ; Moak's Notes to Clarke's Officers. Ch. 438, marg. p. ; Carter v. Roberts, * Stillman v. Squire, 1 Denio, 827. 24 How. 44, was not reversed on tbis ' Kelley v. Breusing, 33 Barb. 601. point. '° Tomlinson v. Howe, Lalor's Sup. ' Ainslie v. Boynton, 3 Barb. 358 ; 410. but see People v. N. Y., etc., 13 Wend. " Waterbury v. Westeriielt, 9 N. Y. 649. 598 ; King v. Orser, 4 Duer, 431 ; Pond * Code, § 303 ; Ma/rtin v. Kanouse, 3 v. Leman, 45 Barb. 152. Abb. 337, 330. " Curtis v. Fay, 37 Barb, 64. 5 Boherts v. Garter, 17 How. 341, and " People v. Schuyler, 4 N. Y. 173 ; 38 N. Y. 107, reversing 24 How. 44. Pond v. Leman, 45 Barb. 152 ; Cum- See Moak's Notes to Clarke's Ch. 438, mings v. Brown, 43 N. Y. 514. ma/i'g. p., and cases cited ; Defiganerie 428 COMPLAINT IN PAETICTJLAB CASES. [CH. IVA. although he paid them over to the plaintiff's attorney.' Where the sheriff arrests the wrong party, who, to procure his discharge, deposits the money, he may recover it back, although the sheriff has paid it over to the plaintiff in the execution.'' Slander.' — In an action for slander or libel, if it be claimed that the words used have, by local usage, acquired a distinct and peculiar meaning, such usage must be averred and proved when it is a question of fact for the jury whether they were so used and understood.^ Thus, the ordinary meaning of the word "black- mail " may be averred and proved to have acquired a local mean- ing.'' Words spoken of a man in his office must, in order to be actionable, be spoken of him in reference to his character or eon- duct in such office, and impute to him the want of some qualiiication for, or misconduct in, his office ;° but words imputing such for any occupation are actionable.' Words imputing to a mariner drunkenness, while in command of a vessel, are actionable per se.' So words imputing to a mechanic want of skill or knowledge in his craft." Words imputing to a man misconduct in his trade or office are actionable, but if it be not such an one as the court can take judicial notice of, the office or trade, its duties and the man- ner of discharging them, must be averred." Though a libel may apply only to some of a class, it m.ay be alleged by innuendo to apply to the plaintiff, as that cruelties are practiced in some of the factories." And if it be without explanation, as " your boys stole my corn," any one and each of the sons may mamtam an action, because all are injured by the assertion." In an action for slander of title the words must be not only firilse, but must be spoken ' Van Tassel v. Van Tassel, 31 Barb. 468 ; Townsend's Libel and Slander, § 439. 382, id., § 133, note, 140, g 134, note, = Meanil v. Dahin, L. R., 3 Q. B. 18. 142. ^ Upon the subject, generally, see ' Edsall v. Brooks, 8 Rob. 284. ante, title Damages ; Townsend on * Lumhy v. Allday, 1 Crom. & Jer. Slander and Libel, Starkie on Slander 301, and cases cited in note at end of (Folkard's ed,), Hilliard on Torts, Ad- case, Johnson's ed. dison on Torts, Broom's Com. Law (4th ■■ Fowler v. Boioen, 30 N. T. 20. Bng. ed.), 654, 759, 761, Smith's Man. » Irvin v. Brandwood, 1 Hurl. & of Com. Law, 3 Broom's Com. 131, 135, Colt. 960. 4 Conw. Rob. Pr. 681, 713. » FitzgeraXd v. Bedfield, 36 How. 97. * Edsall V. Brooks, 3 Rob. 284 ; Slater '" Fouhjer v. yewcomb, L. R., 2 Exch. V. Franks, Hob. 126 ; Pilmor v. Branch 337. Bank, 4 Am. L, Reg. N. S. 336, Sup. " Lefanu v. Malcomson, 1 House of Court of Iowa, but see Wright v. Lords Gas. 637. Paige, 36 Barb. 438, 4 Keyes, 581 ; Deas '« Mahee v. Fisk, 42 Barb. 326 ; Fox- V. Short, 16 How. 322 ; Weed v. Bibbins, craft v. Lasey, Hob. 89 a. 32 Barb. 315 ; OoUyer v. Collins, 17 Abb. CH. IV A.] COMPLAINT IN PARTICULAR CASES. 429 maliciously.' If it be necessary to allege special damages, the complaint must show how the special damages resulted from the speaking of the words ;" and if loss of customers be claimed, the particular customers must be named.' In New York an action may be maintained by a female, whether married or single, to recover damages for words spoken imputing unchastity to her, and it is not necessary to allege or prove special damages in order to maintain the action.^ Words to be actionable ^er se must impute a crime involving moral turpitude, punishable by indictment f it is not actionable to charge one with a military crime, as desertion." Charging a woman with keeping a " whore house," imputes the keeping of a bawdy house, which is indictable and actionable pe7' se.' It is actionable to say another has the clap or the pox f but to say a man has it and gave it to a woman he had married is not actionable, if it be proved he in fact had it immediately after his marriage, his wife, without knowing she had the disease, having communicated it to him." Specific performance." — Equity will not enforce specific per- formance of a contract to convey real estate, if it appear from the terms of the contract the parties intended the money should be paid on a particular day, unless it be then paid." The party in default cannot, in equity, insist time was of the essence of the contract." The contract sought to be enforced must be definite and specific in its terms, for the court cannot make a contract for the parties," although it may be rendered sufficiently definite and certain by proof of surrounding circumstances, and the subsequent conduct of the parties, and will then be enforced." ' Stewa/rd v. Toung, L. E., 5 C. P. 122. et seq. ; Smith's Man. of Eq., 223, et seq. ; ' Gook V. Cook, 100 Mass. 194. Adams's Eq., Seton's Decrees, Daniell's ' Knickerbocker Life Ins. v. EccUsine, Ch. Pr. (4tli Am. ed.), Kerr on Inj., Wat. 11 Abb. N. S. 385; see ante, title Eden on Inj., 49, et seq. ; Moak's notes to Clarke's Cb., inarg. p. 136. ■> Laws NT. 1871, cb. 219, vol.1, p. 448. " Moak's note to Clarke's Ch. 136, ' Wright v. Pajjre, 3 Keyes, 581. marg. p.; Dunlap's note to Davis v. « 19 Ohio St. N. S. 480 ; Trash v. Payne, Thomas, 1 Russ. & Mylne, 514, Banks's 43 Barb. 569, disapproving 4 Bl. Com. ed. ; Dunlap's note to Doloret v. Roths- 102 ; 2 McCaulay's Hist. cb. 8, p. 212. child, 1 Sim. & Stu. 599, Banks's ed. ' Wright v. Paige, 3 Keyes, 581. '^ McCool v. Jacobus, 7 Bob. 115 : Kar- ' Williams v. Soldredge, 22 Barb, ker v. Wamrli/, 50 Barb. 79. 396 ; Hemtt v. Mason, 24 How. 366. '^ Buckmaster v. Thomson, 36 N. T. ' Qolderman v. Stearns, 7 Gray, 181. 558 ; Ti/ler v. JVew Amsterdam, etc., 4 " Upon the subject, generally, see Rob. 1,51 ; Wehl v. Vanderwulbeke, 2 Pry on Specific Performance, 1 Story's Lans. 267. Eq. Jur., §§ 712, 793; Story's Eq. PI., » Oxford v. Provand, L. E., 2 Priv §§ 75, 160, 172-7 ; WUlard's Eq., 260, Council App. 135. 430 COMPLAINT IN PAETICULAK CASES. [CH. IV A. A parol agreement between father and son, that if the son will enter upon a tract of land and improve it the father will convey the same to him, is founded on a good consideration, and if the son enters upon the land and occupies and improves it a specific performance of the agreement will be decreed.' Specific perform- ance of an agreement to transfer stock may be decreed where the contract to transfer is clear and the uncertain value of the stock renders it difficult to do justice by an award of damages.' A decree for a specific performance by a vendor should not direct the defendant to procure releases from parties over whom he has no control. The judgment in such a case should direct a reference to ascertain whether the defendant can give a good title ; also the amount of any incumbrance, which is a lien on the premises, and can be discharged by the payment of money ; and the deduction which should be made from the purchase-money as compensation for the outstanding terms of tenants. It should also require the payment to the referee, by the plaintiff, of so much of the pur- chase-money as may be necessary to pay off all incumbrances which can be discharged, and to the defendant, or into court, for his benefit, of the residue thereof, after deducting the amount to be allowed for such compensation. It should also provide for the discharge, by the referee, of the incumbrances which can be so paid off, and the execution, within a reasonable time, by the de- fendant to the plaintiff, of a good and sufficient conveyance of the premises, etc., to be delivered upon the payment of the sums before mentioned.' "Where the landlord agreed to renew a lease at a rent to be fixed by arbitrators, but refused to arbitrate and revoked the powers of the arbitrators, held a specific performance would be decreed at what the court on the trial should determine to be a reasonable rent, and that the landlord would be restrained by injunction from dispossessing the tenant.* A purchaser will not I Lohdell V. Ldbdell, 36 N. T. 337, 4 Bunnell v. Kettletas, 16 Abb. 205, 4 Abb. N. S, 56 ; Freeman v. Freeman, Bosw. 491 ; KeUo v. Kelly. 1 Daly, 420, 51 Barb. 306, 8 Am. Law Reg. N. S. 29, 422 ; Reformed, etc., v. Parkhurst, 4 43 N. T. 34 ; JSfeale v. Neale, 9 Wallace, Bosw. 491, 16 Abb. 205 ; Viany v. Fer- 1 ; Townend v. Taker, L. R., 1 Oh. App. ran, 5 Abb. N. S. 110, 54 Barb. 529 ; N. T. 446. Cent. R. R. v. Saratoga, etc., %^'&&'ih. ' White V. Schuyler, 1 Abb. N. S. 300, 289 ; see Ryder v. Jenny, 2 Bob. 56 ; 81 How. 38. Wells v. De Leyer, 1 Daly, 45, and 3 Am. ' Jerome v. Saudder, 2 Rob. 169. Law Rev. 249, for an article upon arbi- * Oraham v. James, 7 Rob. 468 ; tration clauses. CH. IV A.J COMPLAINT IN PARTICULAR CASES. 431 be compelled in equity to take a doubtful title.' Where one contracts for the interest of another at a certain price, if he know the facts as to his title, he must pay it and cannot defend an action for a specific performance by showing that the vendee in fact had no title." If the vendee have expended money in good faith, in compliance with the contract, relying upon performance by the vendor, the vendor who is unable to perform cannot recover possession of the lands without repaying such expenditures. If the vendee elect to rescind the contract, the amount of his expendi- tures will be decreed to be a lien upon the premises, or their pay- ment be made a condition of the surrender thereof." The court of equity will not ordinarily enforce a building contract, nor a contract to build a railway. The cases where it will are : 1. Where the building was to be done upon the land of the person who agreed to do it. 2. Where the consideration for the agree- ment was the sale or conveyance of the land on which the build- ing was to be erected and the plaintiff had already, by such con- veyance, executed the contract. 3. Where the building was in some way essential to the use, or contributory to the value, of adjoining land belonging to the plaintiff. 4. When the court could dispose of the matter by an order capable of being enforced at once ; it will not decree a party to perform a continuous duty extending over a number of years.^ The granting of a specific performance is a matter of discretion, and will not be awarded in cases of fraud or mistake ; or of a hard and unreasonable bargain ; and where the decree would produce injustice.' Where the owner demised to A the minerals on the west side of a fault, supposed to be about eighty-three acres, and to B those east of it, supposed to be about ninety-eight acres, biit in running the fault it was found to leave only about eight acres on the west, thus giving B a large excess ; held, the excess was so great that equity would not have decreed a specific performance in favor of ' O'Reilly v. King, 3 Rob. 587; Beyer Woolw. C. C. Rep. 36 ; Lucas v. Com- V. Maries, 3 Sweeny, 715. merford, .3 Brown's Ch'y, 166, see 1 « Hume y.Pocoek',!,. R.,1 Gh. App. 379. Story's Eq. Jur., § 737. ' Moat's note to Clarke's Ch'y, 350, ^ Matthews v. TerwilUger, 3 Barb. marg.p. and cases cited ; Munns v. Isle 50 ; Lynch v. Bisclwff, 15 Abb. 357, note ; of Wight R. R., L. R., 5 Cb'y App. 414 ; WelUston v. Welliston, 41 Barb. 635 ; Oihert v. Peteler, 88 Barb." 488, 88 N. Oale v. Archer, 43 Barb. 330; Shrews Y. 165. hv/i'y, etc., v. North Western, etc., 6 * Ross V. The Union Pacific, etc., 1 House of Lords Cases, 113. 432 COMl^LAINT IN PARTICULAR OASES. [CH. IV A. B, and hence he could not restrain A from working on the east of the fault, and that he had not such a constructive possession as to entitle him to maintain the action." A railroad company will he deemed to comply with their agi*eement as to the manner of running across the farm of one over whose lands the road is to be constructed ; ^ so will the churchwardens of a church from ringing a bell.' Under a power to lease at the hest rent, the very highest rent that can be obtained is not required, and the true criterion is whether the rent has been fairly obtained without any private advantage to the donee of the power, and therefore an agreement which the court treated as subject to the same rule was enforced, though the rent obtained was below the offers made by less solvent tenants, and below the average at which the lands were valued, where the agreement was fairly made and was a prudent one. Though a contract to lease by a tenant for life with a leasing power cannot be enforced as an execution of the power, it may he partially enforced by decreeing a lease for the life of the tenant for life if the contract was lonafide, and more especially if there has been an outlay on the faith of it.* Part performance of a verbal contract takes it out of the statute of frauds and entitles the party to a specific performance ;' but payment of the purchase-money or a part thereof is not ordi- narily a part performance within this rule.' Where, however, the restoration of the money will not restore the purchaser to his former situation ^le is entitled, in equity, to a specific perform- ance of the contract.' In the part performance, however, the acts must be so clear, certain and definite in their object and design, as to refer exclusively to a complete and perfect agreement, of which they are a part execution And they must be a part per- formance of the agreement set up ° in the complaint and not in the answer by way of defense." ' Dmiis V. Shepherd, L. R., 1 Ch. App. on and disapproving of dicta in Hart- 410. nett V. Yielding, 2 Sclioales & Lbf. 549. « Raphael v. Thames, L. R., 3 Ch. » Malins v. Brown, 4 N. Y. 403 ; Wil- App. 147. liston v. Williston, 41 Barb. 635. 3 Martin v. Niitkin, 2 Peere Wil- " Cagger v. Lansing, 43 N. T. 550. liams, 266 ' Saight v. Child, 34 Barb. 186. ^ Dyas V. Cruise, 8 Irisli Eq. Rep. ^ Malins v. Brown, i'i^.Y.idZ. 407, 420, 2 Jones and Latouche, 460; ^ lintliMtn v. Rathhun, 6 Barb. 98. SuGDEN, Lord Chancellor, commenting Baight v. Child, 34 Barb. 186. CH. IV A.J COMPLAINT IN PARTICULAR CASES. 433 If the vendee take possession of the lands and is in possession thereof under and pursuant to the contract, that is a sufficient part performance.' Otherwise if he have surrendered the posses- sion which has been accepted by the vendor.^ Therefore where a tenant in possession sued for the specific performance of an alleged agreement for a lease, and set up his possession as an act of part performance of the agreement, it was held not to be such, because it was referable to his character of tenant. So again, where a tenant from year to year continues in possession, and lays out such moneys on the farm as are usual in the ordinary course of husbandry, this is no part performance of an agreement for a lease. And again, where a tenant under a term alleged the rebuilding of a party wall, which was in a ruin- ous state during his term, as part performance of an agreement by his landlord to grant a renewed term, it was held that the act was equivocal, as it might have been done by him in respect of his title under the old as well as under the alleged new term.' So remaining in possession by the purchaser, if he was in pos- session at the time of his pxirchase, does not constitute such a part performance as will take the case out of the statute.* To entitle a purchaser to a specific performance on the ground of alleged improvements, they must have been made under a possession pursuant to the terms of the contract of sale by the consent of the seller and with knowledge on his part that the piirchaser entered or intended doing so under the contract of pur- chase. Nor is a possession without delivery, or without the inten- tion or consent of the owner, sufficient ; still less if the possession has been obtained by fraud or indirection. So a mere continued possession by the plaintifi^, he having been in possession before the contract, is not enough unless there be declarations or circum- stances distinctly showing that his continuity 6f possession is in pursuance and execution of the contract, and so regarded by the parties. This may be made apparent by paying more rent or making improvements, or expending money or doing other things required by the contract.' " Tha/phagen v. TTiapliagen, 40 Barb. p. 253, 2 Am. ed. 176, marg. p., 2 Russ. 1)37; Bennett v. Abrams, 41 id. 619. 190, note. ' HaigM v. GMld, 34 Barb. 186. " Hatcher y. Hatcher, 1 McMillan'.s ' Fry on Specific Performance, § 387, Cli. 311. '3 Pars, on Cont., Sth ed., 393; 55 434 COMPLAIFT IN PARTICULAE CASES. [CH. IV A. The possession, when set up as an act of part performance, must be referable to the agreement. It must be either delivered by or taken with the consent of the vendor. If otherwise it cannot avail.' The act must be in part performance of that particular contract. " Where a vendee of real estate, under a parol contract, relies upon his entry into possession to take it out of the statute of frauds, his entry must be connected with and referable to the contract, and it must clearly appear that he took the possession with the known permission of the vendor.^ Specific performance will be decreed of an agreement to main- tain division fences,* of one to pay off and discharge a mortgage on one's lands, although he have conveyed them ; ' so of an agree- ment to pay a deficiency ;° and to buy a debt. ' The complaint in an action for specific performance should allege a readiness and willingness on the part of the plaintiff to perform the agreement set up and an offer to do so ;° the better practice is to bring the money into court for the defendant, although this is not absolutely necessary." Where the heir of the grantor is a lunatic the court will decree a conveyance by his committee." After the death of the vendor the purchase- money is payable to his personal representatives," so that they as well as the heirs are necessary parties," unless the heu-s con- vey to the personal representatives in order to enable them to perform." If the wife of the party will not join in the conveyance specific performance by the husband will be decreed with compensation in damages for the refusal of the wife," although she cannot be Vrame. v. Dawson, 14 Vesey, 387 ; Wil- ^ Goldsmith v. Brown, 35 Barb. 484. Uston V. Williston, 41 Barb. 643 ; Rath- ' Wright v. Bell, 5 Price, 335. hun V. Eathban, 6 id. 9. s Saight r. Vhild, 34 Barb. 186 ; ' Jervis v. Smith, Hoffman's Ch. Rep. Irrin v. Gregory, 13 Grav, 317. 470. 9 Inin v. Gregory, 13 "Gray, 315. " Phillips V. Thomson, 1 Johns. Ch. '" Swartwout v. Burr. 1 Barb. 495. 131. "Swartwout v. Burr, 1 Barb. 495; ^ Lord V. Tlnderdnn.elc, 1 Sandf. Ch. Mnorc v. Burrows, olid. 173; Adams 46 ; Byrne v. Romnine, 3 Edw. Ch. v. Green, id. 176 ; Smith v. Gage, 41 Rep. 445. id. 60. ^ Williston V. Williston, 41 Barb. 635. '- Siifhcrlaiid v. Rose, 47 Barb. 145. " Ben n Pit v. Ahrams, 4.1 Barb. 619 ; ^^ Sehrorppel x. Hopper, il)'Ba.ih.i25. Farnhiiiii v. Mallory, 5 Abb. N. S. 380, "' Park \. Johnson, 4 Allen, 359, cited 8Keyes,537;&j)flsg'ev. ^fV/Zo^Talb. R. 8 Am. L. Reg. N. S. 180; Davis \. 2'6i; Kati.awha v. Kanawha, etc., 7 Parker, Xi: Allen, 94 ; see Hawrallyv. Blatohf. 430-1. Warren, 3 C. E. Green, 134. CH. IV A. j COMPLAINT IN PAUTICULAK CASES. 435 compelled to release her dower.' Where a husband and wife agreed to sell the wife's estate in fee-simple, the purchaser being aware that the estate belonged to the wife, and she afterward refused to convey, it was held that the purchaser could not compel the hus- band to convey his interest and accept an abated price f nor will the court decree specific performance of an agreement to procure for the plaintiff a good title to land owned by another to the plaintiff's knowledge.^ So in any case where the vendor cannot fully perform, the court may, at the election of the vendee, decree a specific performance with couipensation in damages or a proper reduction on account of the deficiency." If one purchase lands with notice of an agreement on the part of his grantor to convey them, he will be compelled to fulfill such agreement.'* Specific performance of an agreement to purchase may be decreed provided the plaintiff acquire title after the commence- ment of the suit but before judgment, but the plaintiff in such case will be charged with costs.' Where the vendee enters into and retains possession under his contract he cannot, without an offer to surrender the possession, resist a decree for specific per- formance on the ground of slight defects in the vendor's title.' An agreement to convey by certain boundaries pointed out by the vendor, but a conveyance made not covering the entire premises, will be reformed, and a specific performance decreed of a conveyance according to the actual agreement, even in favor of an assignee.' Stamps." — An averment that a party made and executed an instrument imports that it was stamped, and it is not neeessai'y to aver that it was." A demurrer will not lie to a complaint wliich does not show the instrument was stamped." Statute.'" — " There is a material distinction, not always observed ' Sqzdre v. Rurder, 1 Paige, 494. ' Tompkins v. Hi/att, 28 N. T. 347. ' Castle V. Wilkinson, L. R., 5 Ch. " Bentley v. Smiih, 2 Keyes, 343 ; App. 534. Moak's note to Clarke's Ch. 43, marg. p. ' HUl V. Fiske, 38 Maine, 530. ' Upon the subject, generally, see * Gfibert v. Peteler, 38 Barb. 488, 38 Bump's Internal Revenue Law, 3 Pars. N. Y. 165 ; see note to JDalbi/ v. Pullen, on Cont., 1 Chitty's PI. 315, 1 Abb. PI. 3 Simons, 38, Banks's ed., and also to and Forma, 387, note; Steph. PI. 347, In re Bare Bank Drainage, id. 449. 1 Estee's PI. and Pr. 344, et seq. See Beyer v. Marks, 3 Sweeny, 715, for '» Jones v. Davis, 23 Wis. 431 ; Hal- the rules which guide a court of equity, lock v. Jaudin, 34 Cal. 167. in cases of compensation. " HaUock v. Jaudin, 34 Cal. 167. 'CAampioTiv. i?TOM./i,6 Johns. Ch.408. " Upon the subject of pleading stat- ^ PhiUipson v. Gibbons, h. R., 6 Ch. utes see 3 Couw. Rob. Prac. 523-6, App. 438. 613-616, Gould's PI., ch. 3, § 16. 436 COMPLAINT IN PAETICULAE CASES. [CH. IV A. by writers on pleading, the non-observance of which has some- times occasioned confusion, 'betvi qqth. pleadifvg, counting upon and reciting a statute. Pleading a statute is merely stating the facts which bring a case within it without making mention or taking any notice of the statute itself. Coimting upon a statute consists in making express reference to it, as by the words ' against the form of the statute ' (' or by force of the statute ') ' in such case made and provided.' Reciting a statute is quoting or stating its contents. A statute may, therefore, be pleaded without either reciting or counting npon it ; and may be counted upon without being recited." ' By section 163 of the Code, " In pleading a private statute, or a right derived therefrom, it shall be sufficient to refer to such a statute by its title and the day of its passage, and the court shall thereupon take judicial notice thereof." This section does away with reciting a private statute ; but counting upon it still remains necessary, although the form of counting upon it is there prescribed." This section of the Code does not apply to foreign statutes." To plead that a contract is valid by foreign usury laws the laws should be stated and the facts which render the contract void according to them should be alleged ;' so as to municipal laws and ordinances.'^ It is not sufficient to plead foreign statutes by their titles and dates, nor by a statement of their general provis- ions and requirements." In the federal courts the general statutes of a State may be pleaded in the same manner as in the 1 Gould's PI., ch. 3, § 16, note p. 46, ^ Throo-p^ v. Hatch, 3 Abb. 25 ; PUn- 4th ed. ; also cited Stepli. PI. 347, ney v . Phinney, 17 How. 197 ; Thacher Heard's ed., and 1 Estee's PI. and Prac. v. Morris, 11 N. T. 437 ; Ruse v. Mut. 344. Notwithstanding the weight to Benefit Ins. Go. ,2^1^. "i.blQ ; 1 Estee's be given to such standard authors, the PI. 247 ; as to form of pleading a foreign editor of the present edition does not statute see 1 Abb. PI. and Forms, 386, assent to the above, so far as it defines et sen. what is pleading a statute, nor does ^ Curtis v. Afasten, 11 Paige, 15, 1 § 163 of the Code seem to be based Abb. PI. and Forms, 387, note ; Fake upon such a definition. How can a v. Smith, 7 Abb. N. S. 106 ; Bannatyne ■•statute, as such, be pleaded without the v. Barrington, Drury's Select Cases, slightest reference to it ? We think, in Temp. Napier, 460. order to plead a statute, the pleader * Harker v. Mayor, 17 Wend. 199 ; should state that by statute it is pro- People x. Mayor, 7 How. 81. vided, etc., although it may not be '1 Estee's PI. and Prac. 248. 1 Abb, necessary to count upon or recite it as PI. and Forms, 387, note. Throop v. the terms are above used. 1 Abb. llatrh, 3 Abb. Prac. 23 ; Phinney v. Forms, 387. PMn ney, 17 How. 197 ; Oarey v. Cincin ' 1 Gould's PI., ch. 8, g 16, note vii, nnti, etc., 5 Clarke (Iowa), 357. 4th ed., p. 47. CH. IV A.J COMPLAINT IN PAKTICULAR CASES. 437 State courts ;' but as the code does not apply to" them private statutes must be pleaded as at common law." Subscriptions. ^ — A mere voluntary subscription to aid a charitable or educational institution is without consideration and cannot be enforced.* When a subscription paper did not set forth any consideration, but the complaint averred that the considera- tion of the subscription by the defendant and others was the agreement of the plaintiffs, as trustees of a religious society, to recover the old church edifice and to build a new one on the same site, and it alleged that in consideration of the subscriptions the trustees had removed the old building and erected a new one in its place, at a cost of several thousand dollars, and the proof established the truth of the averment, held that the trustees in an action upon the subscription paper were entitled to recover.' So a subscription agreeing to pay the trustees of a church a cer- tain sum per annum for the support of a minister so long as he remains the regular minister." On a subscription, the third installment of which was to be paid when a building shall be completed as a medical college, the sub- scriber is not liable if, before completion, the building be trans- ferred to an institution for the education of females.' So where the members of an incorporated church signed an agreement to pay a certain sum fer annum for the support of a minister, but the church was afterward incorporated and the minister received ' Pennington v. Gibson, 16 How. (U. Union Sem. v. Brownell, 37 id. 535 ; S.) 81. Dansmlle, etc., v. Welch, 38 id. 321 • * The general remarks in last case Watkina v. Eames, 9 Gush. 537 ; Re- should be qualified as the court was formed, etc., v. Brown, 17 How. 288, speaking of sucli and of common-law 29 Barb. 335, 34 How. 76 ; Trustees, pleading, see 2 Abb. TJ. S. Pr. 56. etc., v. Robinson, 21 N. T. 234 ; Wayne, By statute, just passed, the rules of etc., v. Smith, 36 Barb. 577, 40 id. 72 ; pleadings in actions at law are the but see last case, said to be reversed, 41 same in the Federal as the State courts. N. Y. 620 ; Hammond v. Shepard, 29 Act of Congress approved June 1, 1872, How. 188 ; Wayne, etc., v. Deiiinney, 43 5 Alb. Law. Jour. 385 ; 17 XJ. S. Stat. Barb. 220 ; Hutchins v. Smith, 46 id. at Large, 197, § 5. 235, Theobald Pr. and Surety, 209, 310 ; ' Upon the subject, generally, see 1 see Slocum v. Barry, 34 How. 320, 38 Pars, on Cont., 5th ed., 452-5. N. T. 46, 4 Abb. N. S. 399 ; Van Rens- * Trustees, etc., v. Stewart, 1 N. Y. selaer v. Aiken, 44 N. Y. 126 ; Trustees 581, 2 Den. 403 ; Stoddart v. Cleveland, v. Garvey, 53 111. 401, 5 Am. Rep. 51 ; 4 How. 148 ; Hammond v. Shepard, 29 Lathrop v. Knapp, 37 Wis. 314 ; see id. 188 ; Van Rensselaer v. Akin, 44 Pitt v. Gentle, 49 Mo. 74. K. Y. 136 ; see McAuley v. Billinger, ^ Hiefendorf v. Trustees, etc., 20 30 Johns. 89. Johns. 13. ' Burner v. Perrine, 9 Barb. 202, 15 '' Worcester, eta.,\.Bigelow,Q Van VUeden v. Wells, 6 Jolins. 85. Cooke v. , 2 Freem. Rep. 97, and ^ The Reformed, etc., v. Brown, 17 Hovenden's note ; Chester v. Bank, 16 How. 387, 34 id. 7«, 29 Barb. 335 ; see N. Y. 336. ShiJbUy v. Angle, 37 jSf . Y. 636 ; In re « Pitts v. Congdon, 2 N". Y. 352 ; Mat- National, etc., L. R., 5 Ch, Apj). 309 ; thews v. Aikiii, 1 id. 595 ; Lewis v. Sproat V. Porter, 9 Mass. 300 ; Wayne. Palmer, 38 id. 375-6 ; Schroeppel v, etc., V. Smith, 36 Barb. 577 ; Pcvplr, Shaio, 3 id. 446 ; Howard v. Salsei/, 4 etc., V. Balch, 8 Gray, 303 ; also. Rector. Sandf. 565, 8 N. Y. 371 ; Buffalo, etc. v. etc., V. Crawford, 43 N. Y. 476, re- Howard, 35 id. 504-5 ; Elwood v. De- versing 5 Rob. 100, where it was lield fendorf, 5 Barb. 398 ; Baehelder v. in the court below the subscription Fiskc, 17 Mass. 464 was not for the purposes of the corpo- ' Bank of Kingston v. Chester, 16 N. ration but a separate and distinct one, Y. 336 : Lake v. Artisans' Bank, 1 3 Kidwelly, etc., v. Raby, 3 Price, 93. Trans, App. 71, 3 Abb. N. S. 310. * 0pon the subject, generally, see * Pitts v. Gonc/don. 3 N. Y. 353. 1 Story's Bq, Jur, , t-'S 567, 589, 635, 398 ii, » Higgins v. Wriqht, 43 Barb. 464-5 439, note, 503, 507, 635-8, 3 id,, g^ ■« Wadev. Ooope,'i Simons, 155. 1337-9 ; Smith's Man. of Eq., 1st Ani. " Curtis v. Tyler, 9 Paige, 431; Rice ed., 356; Williams's Pers. Prop. 108, v. Dffloey, 13 Gray, 47. iiiarg. p. 190 of 5th Am. ed, and ex- " Averill v. Taylor, 8 N. Y. 44. haustive note; Willard's Eq. 110-113, '» Kinney v. McCuUock, 1 Sandf Ch. <> Wright v, lUorlry, 11 Vesey, 33-3; 870. Pa/rsons v. Briddock, 3 Vorn. 608; CH. IV A.J COMPLAINT IN PAETICULAE CASES. 439 self of the right to demand subrogation when the debt is sought to be collected from him.' "Where the creditors' judgment includes other demands than that for which the surety' is liable he may assign the excess, reserving a right to collect the debt for which the surety is liable by a separate judgment.'' If one of two sure- ties give collateral security for the payment of the debt for which he is surety, his co-surety does not, by paying the debt, become entitled to the benefit of that security.' The last indorser obtained judgment against the maker and indorsers. After levy on sufficient property of the maker of a note, or the sheriff becoming hable for it because of an insufficient levy, the third indorser paid the judgment. Held, that having, by his interference, released the lien under the levy, or the responsibility of the sheriff, either of which would, if enforced, have relieved the prior indorsers, it \vould be inequitable to mak-e.those indorsers or their property liable to him for the debt.* One who pays a debt for which he is not personally liable, and which is not a charge upon his property, is not entitled to be subrogated to a lien which the creditor had upon the estate of the debtor.' An insurer of a mortgage may, however, contract for being subrogated to his rights, in case of loss and payment.' The court will ordinarily go no farther than to direct a subrogation, leaving conflicting claims to be determined by future adjudication. It is not a valid objection to the subrogation of a defendant in foreclosure, in the place of the plaintiff, that the sale may be abandoned, and subsequent incumbrancers miss their opportunity of reaching the surplus moneys. If the court has power to compel the holder of a judgment of foreclosure to sell the mortgaged premises, it will be exercised only in extraordinary cases.' A junior mortgagee or judgment creditor has a right to protect his lien or interest, by paying a prior mortgage due and payable, and if he does pay it he succeeds by subrogation, on settled principles of equity, to the rights and interests of such prior mortgagee in the lands, as security for the amount so paid, without any assign- ment or act of transfer by or on the part of the prior mortgagee ;' ' MtMell V. Garpmter, 5 N. T. 171. « Bpringfield, etc., v. Allen, 43 N. Y. ' EiMell V. Carpenter, 5 N. Y. 171. 389. " BowditcTi V. O-reen, 3 Mete. 360. ■" McLean v. TompTcms, 18 Abb. 35. « Perlee t. Onderdonk, 19 Barb. 563. » BUsworth v. Loehwoed, 43 N. Y. 96. 5 Wilkes V. Harper, 1 N. Y. 586. 440 COMPLAINT IN PAKTICULAE CASES. [CH. IV A. but if a third person take a conveyance to secure a debt as to whicb A is surety, and, on payment of the debt by A, pursuant to the agreement, convey the property to him, A cannot insist upon being subrogated to the rights of a prior incumbrancer.' If an agent be instructed to insure and make a parol agreement for insurance, he cannot compel his principal to litigate with the insur- ance company for a policy, but is liable to his principal for not procuring the insurance. He must pay his principal when, if he have a valid verbal contract, he may be entitled to an assignment of it or may, irrespective of a statute right to sue in his own name, sue on it in the name of his principal.^ Surety." — A surety is not liable beyond the terms of his con- tract.'' Where one executed a bond as surety for the due accoimt- ing for moneys received by a clerk on a salary, and his employers changed it to a commission on sales made by him, held, the surety was not liable for moneys thereafter embezzled by the clerk.' The sureties of a public officer are not, however, discharged by the imposition of new duties of a similar nature and character iipon their principal ;° so when the term of office is extended, the bond providing for an accounting under any future election ;' so sureties on an appeal bond execute it subject to changes in the statute which may increase their liability.' But the sureties of a cashier, who agree to become liable for his mistakes or defalcation, are exonerated from liability if the capital of the bank is increased." Where one signed a bond as surety for the payment of all moneys received by an officer who was also a banker, and the officer paid certain drafts on him, as such, in his own bank-notes, and also 1 ElUwortli V. Lockwood, 42 N. Y. 97. 1 Conw. Rob. Prac. 490-8, 2 id. 438, 439, ' Manny v. DutUap, 1 Woohvorth'a 513, 339, 241, 4 id., title Surety, Tidd's C. C. R. 372. Prac, Daniell's Gli'y Prac. ^ Upon the subject, generally, see ^Buulo'p'si-iote to Archer Y. Hudson, Burge on Surety, Pitman on Surety, 7 Beav. 564, Banks's ed. Theobald on Principal and Surety, ' Northicestei-n, etc. , v. Whinray, 10 Whittier on Guaranty and Suretyship, Exch. 77 ; Bonar v. McDonald, 3 House Williams on Personal Property, 108 of Lords Cases, 226. marg. p. 189 (3d Am. ed.), and exhaus- ^ People v. Vilas, 36 N. Y. 459 ; tive note ; Moak's note to Glarlie's Cli'y Mayor, etc., v. Ryan, 4 Trans. App. 75, marg. p.; and also Index, title 363 ; Skillett v. Fletcher, L. R., 2 Com. Surety, Story's Eq., Smith's Man. of PI. 469, Exch. Chamber. Eq., Adams's Eq., Willard's Eq., Pars. ' Osteoid v. Mayor, etc., 5 House of on Cout., Addison on Cout., Smith's Lords Cases, 856. Man. of Com. Law, Bouvier's Institutes, * Horner v. Lyman, 4 Keyes, 237. Kerr on Inj. 71-78, Waterman's Eden ' Grocers' Bank v. Kingman, 16 on Inj., 63, et seg.. Waterman on Set-ofF, Gray, 473. CH. IV A.] COMPLAINT IN PAETICULAR CASES." 441 gave one, who held such a draft on him, his own draft on London, held that both were payments and the sureties were not liable although the banker thereafter failed the same day.' If one become surety to a firm he is not liable after one of the partners retires ;" so a guaranty of advances to two does not cover those made to one.' A cashier's surety is liable until he is re-elected or reappointed, although allowed to hold over the usual term.' If one partner sells to another, who agrees to pay the firm debts, the retiring partner is a surety for the debts, and a creditor with knowl- edge of the facts is bound to so consider him.'' SiirviTOr." — The representatives of a deceased partner cannot be joined, as defendants with the surviving partner, in an action upon a partnership debt, unless the complaint show plaintiif's inability to procure satisfaction from the survivor ;' but it is not necessary to show the remedy at law against him has been ex- hausted." So as to any parties who were originally jointly liable." The representatives of a surety, jointly but not severally bound, are not liable even in equity.'" But if au obligation is joint, on proof that the intestate received part of the consideration his executors are liable." Tax. — Where a tax has been collected and paid into the treasury of a municipal corporation, no action lies to recover it back''' until after the assessment is reversed on certiorari. '^ Xor ' Guardians, etc., v. Oreen, 1 Hurl. Euss. 196, Banks's ed. ; Sichter v. Pop- & Norm. 884. penhausen, 42 N. Y. 373. See StaJd v. ^ The Chancellor, etc., v. Baldwin, 5 Stahl, 2 Lans. 60. Mees. & Welsb. 580. ' Piper v. Poppenhausen, 48 N. Y. 68. ^ Cremer v. Higginson, 1 Mason, 323, ' Moak's note to Clarke's Ch. 171, 337. marg. p. ; Hulbert v. Ferguson, 40 "B-ov Farmers' Bank, 9 Am. 478; Williams on Pers. Prop. 283, Ii. Beg. N. S. 365. marg. p. ' Golgrove v. Tollman, 2 Lans. 97. '" Moak's note, supra ; Hulbert v. Fer- * Upon the subject, generally, see gu.ion, iOJIow. HIS; Fieldenv. Lahens, ante, 193, marg. p.; Moak's note to 6 Blatohf. 534; United States v. Ar- Clarke's Ch. l"?!, marg. p.; 1 Story's cher's Ex'rs, 1 Wallace, Jr., 173, over- Eq. Jur., §§ 162-164; Williams on ruling United States v. Gushman, 2 Pers. Prop. 283, 386, marg. pp., and Sumner, 426. notes to 3d Am. ed. ; Parsons on Part- " Moak's note, supra ; Hulbert Y. Fer- nership, Story's Eq. P1-, §§ 169, 177-9 ; guson, 40 How. 478 ; Dunlap's note to Addison on Cont., 6th Eng. ed., 645, Bawstone v. Parr, 3 Russ. 541. 769-774, 845-7, 1048 ; Best on Ev., 5th '^ gy^ij^i .^ Poughkeepde, 37 N. Y. 511 ; Eng, ed., 534 ; Cowen's Treatise, Kings- Foster v. Van Wyck, 3 Trana App. lev's ed. ; 3 Conw. Rob. Pr. 163^, id. 196, 4 Abb. N. S. 469 ; Rogers v. In- 108, 3 Wait's Law and Pr. 375, 378. habitants, etc., 58 Me. 390 . ' Moak's note to Clarke's Ch. 171, " Bank of Commonwealth v. The marg. p. ; note to Oowel v. Sikes, 3 Mayor, etc., 43 N. Y. 187. 56 442 COMl^LAINT IN PAKTICULAR CASES. [CH. IV A. will an equitable action lie to restrain the collection of an illegal tax.' The remedy is by certiorari to reverse the assessment or by mandamus to compel the assessors to strike the assessment from the rolls." Although if the property of a party be partly in each of two towns, and he be assessed in each, an interpleader suit will lie.' The statute now provides that for real estate so situated the owner shall be taxed in the town in which he resides.'' Tax payer. — There are many cases and much conflict upon the question as to when a tax payer, as such, may maintain an action. We think, however, the result of the cases may be stated to be that a tax payer cannot m aintain an equitable suit on behalf ot himself and all others similarly situated and interested to restrain the collection of a taxj unless there be some other acknowledged head of equity jurisdiction ;' such as that the enforce- ment of the tax would lead to a multiplicity of suits ;" or that the plaintift's real estate will be subject to a cloud ;° in the latter cases the suit would not probably lie in ~Hew Yoik ;' although after a sale for taxes, the owner may maintain an action to remove a cloud upon his title by reason thereof, if the papers be not void upon their face, so as to themselves show the defect.' It is only where there is no adequate remedy at law that a court of equity will interfere.' Nor will an action lie by a tax payer, on behalf of himself and others, to restrain the doing of any act as to which he .has no other interest than one common to all other citizens or freeholders ' Mutual, etc., v. The Mayor, etc., 33 183, 8 Bosw. 683, 33 Barb. 332, 20 How. 359; McDonald v. Murphree, 45 How. Pr. 416; Hasbrouck v. Kingston, Miss. 705. etc., 3 Trans. App. 106, 8 Keyes, 480 ; '' Mutual, etc., V. T he May or , eta. , 32 Blake v. City of Brooklyn, 36 Barb. How. 359 ; People v. Assessors, 40 N. X. 301 ; Von Beck v. Village of Bondout, 154; People V. Assessors, 44 Barb. 148 ; 15 Abb. 50, affirmed, 41 X. Y, 619; Bank, etc., v. City, etc., 4 Paige, 399 ; Brooklyn, etc. v. Goney Island, etc., 35 Wilson V. Mayor, 4 B, D. Smith, 675 ; Barb. 365. People V. Gommissioners, 33 N. Y. 334, " Doios v. Ghicago, 11 Wall. 108 ; 31 How. 385, 33 Barb. 116 ; see People McDonald v. Murphree, 45 Miss. 705 V. Dolan, 36 N, Y. 59 ; People ex rd. ' Mtigee v. Cutler, 43 Barb. 339. Buffriio, etc., 33 How. 150, 48 Barb. 173. « Co.e v. C/ift. 3 N. Y. 118 ; Peck upenisors, 35 ' McDonald v. Murphree, 45 Miss, id. 313 ; Mutual, etc. v. Supervisors, 33 705. How. 359, 3 Abb. N. S. 333, 3 Keyes, CH. IV A.] COMPLAINT IK PAETICULAB OASES. 443 of the locality or State, as to restrain the erection of a new town.' A tax payer cannot restrain a municipal corporation wherein he resides from paying out money collected on the ground that the contract was not made according to law ;' even though he be a creditor of the corporation.' Nor can he restrain the laying down of a railway in a public street ^ unless he own the fee. of the street over which the projected railroad is to be laid,' or it would amount to a nuisance or result in a special injury to his premises.' JSTor can one railroad to which such a privilege has been granted restrain another company, upon which similar rights have been conferred, from laying down one.' The people caimot maintain an action to restrain the issuing of bonds by a town to aid in the construction of a railroad f although they may to restrain a corporation from entering into a contract not authorized by law." Tenants in common.'" — ■ One tenant in common may sever his share from the common mass," and if his co-tenant refuse to allow him to do so it is equivalent to conversion, and he is liable in trover. '° One tenant in common cannot maintain replevin against his co-tenant, or his bailee, for the possession of a single indivisi- ble article." One tenant in common who sells or disposes of the ' DooUttle V. Sv.penisors, 18 N.Y. 155. plaining Dams v. Mayor, 3 Diier, 663 ; 2 Brady v. Mayor, 35 How. 81 ; Pull- People v. Glarh, 53 Barb. 172; People man v. Mayor, 54 Barb. 169, reversing v. Mayor, etc., 27 How. 34 ; see Attor- 49 id. -57, 2 Abb. N. S. 29. But see ney-Gteneral v. Salem, 103 Mass. 140-1. Milhau V. Sharp, 15 Barb. 193, 27 N". Y. " People v. Mayor, eto., 83 Barb. 35, 611, 38 Barb. 338. 9 Abb. 253, 10 id. 144,19 How. 155; 3 Mosevdt V. Draper, 23 N. Y. 318. People v. Mayor, 32 Barb. 102. ^ Davis V. Mayor, 14 N. Y. 506 ; '" Upon tbe subject, generally, see People V. Kerr, 37 id. 188. Addison on Torts, Hilliard on Torts, ' V. King, 33 How. 39 ; Craig Cowen's Treatise, Kingsley's ed., §(^ V. Rochester, 39 N. Y. 404, 39 Barb. 494 ; 183, 619, 620, 759 ; Kent's Com., Pars. Wager v. West Troy Union, etc., 25 N. on Cont., Add. on Cont., Estee's PI. and Y. 536 ; Carpenter v. Oswego, etc., 34 Pr. 8 Conw. Rob. Pr. 157-175 ; Smith on id. 655 ; WiMiams v. N'. T. Cent. B. B., Real and Pers. Prop., titles Joint Teu- 16 id. 97 ; EllieottviUe, etc., v. Buffalo, ants and Tenants in Com., Barbour's etc., 30 Barb. 644 ; People v. Laio, 84 id. Ch. Pr., Daniell's Ch. Pr., Story's Eq., 494. The case of Brooklyn, etc., v. §§ 466, 505; Tidd's Pr., titles Joint Brooklyn, etc. , 38 id. 420, is not good "Tenants and Tenants in Common, law, and it is doubtful whether Heath " Channon v. Lusk, 2 Lans. 211 ; V. Barman, 49 id. 496, is. Tripp v. Biley, 15 Barb. 888 ; Forbes )l6 V. Kerr, 20 How. 130, 27 v. Shattuck, 23 id. 568. N. Y. 188 ; Milhau v. Sharp, 27 id. i» Channon v. Lusk, 3 Lans. 311, 216, 611, 15 Barb. 198, 28 id. 238. note ; Lobdell v. Stoimll, 37 How. 88 ; ' Brooklyn, etc., v. Coney Island, etc.. See Farr v. Smith, 9 Wend. 388. 35 Barb. 365, explaining Brooklyn, etc., ^^ Russell v. Allen, 18 N. Y. 173 ; V. Brooklyn, etc., 33 id. 358. Witham v. Witham, 2 Alb. Law Jour. * People Y. Miner, 2 Lans. 396, ex- 461, 57 Maine, 447 ; Foster v. Magee, 3 444 COMPLAINT IN PAETICULAR CASES. [CH. IV A. entire property is liable to liis co-tenant.' So if he remove a fixture so as to destroy its use.'' A court of equity will, in a proper case, decree partition of personal property between tenants in common.' An agreement to work a farm on shares makes the parties tenants in common of the products.^ One tenant in com- mon of real estate, who enjoys the whole estate, without any demand by his co-tenants to be allowed to enjoy the premises with him, is not liable to his co-tenant for such use, or the profits thereof,' unless he have received money, from some third person, beyond his share,' even though the occupancy be after a lease from his co-tenant of his share ;' although if one co-tenant receive rent from a third person, he is by statute liable to his co-tenant for his share thereof One tenant in common cannot recover of his co-tenant money expended in repairs, without a request to join in them." K one tenant in common forcibly disposses his co-tenant, he is a trespasser. '° One tenant in common cannot recover the whole of the agreed price for the use of the property." It has, however, been held in Massachusetts that one who buys standing grass from a tenant in common, of real estate, in ocaw- pation thereof, and cuts and harvests the grass, cannot avoid pay- ing him the full contract price for it on the ground that the co-tenant had forbidden the payment." Although one tenant in common may sue another, yet two of them cannot join in a suit against a third, for they have no joint interest." Tender." — In case one defrauded desires to rescind on the ground of the fraud he need not tender back money received provided the party defrauding have realized from the use of the property more than the amount of purchase-money paid ;'" nor need Lans. 184. See Van Orman v. Phelps, Henderson v. Eason, 17 Q. B, (79 Eng. 9 Barb. 500, 506. C. L.) 701, 9 Bug. Law and Eq. 337. ' Nowlen v. Colt, 6 Hill, 461 ; Weld ' Dresser v. Dresser, 40 Barb. 300. V. Olimr, 21 Pick. 559 ; Farrar r. Bes- » 1 B. S. 750, § 9, 1 Edm. Stat. 701 ; vnck, 1 Mees. & Wels. 688 ; White v. WooUer v. Knapp, ISBarb. 267. Osborn, 21 Wend. 73 ; Dyekman v. ' Mumford v. Brown, 6 Cow. 475 ; Valiente, 42 N. Y. 549. ' Taylor v. Baldwin, 10 Barb. 582, 626. 2 Benedict v. Howard, 31 Barb. 569. >» McGerrill v. Murphy, 1 HUt. 132. 3 Tinney v. Stebbins, 28 Barb. 390. " Foster v. Magee, 2 Lans. 182. ■* WUber v. Sisson, 53 Barb. 358. " Brown v. Willington, 106 Mass. ^ Woolemr v. Knapp, 18 Barb.. 365 ; 318. Seott V. Guernsey, 60 id. 164 ; Wilcox '^ Farrar v. Pearson, 59 Maine, 561. V. Wilcox, 48 id. 327 ; McMahon v. " See ante, title " Performance." Burchell, 2 Phillips, 137. " Pearse v. Pettis, 47 Barb. 276 ; see « Peak V. Carpenter, 7 Gray, 283 ; Mattewan v. Bentley, 13 id. 641. CH. IV A.J COMPLAINT IN PARTICULAR CASES. 445 he in such case tender back worthless stock if he seek to recover damages for the fraud} In such case if the vendee have sold to another, purchase-money received by the vendor need not be tendered to the purchaser from the vendee," although ordinarily tender of performance must be made to an assignee. ° In a suit by a vendee to recover damages for failure by the vendor to perform a contract of sale he need not aver tender of perform- ance if he show the vendor have put it out of his power to perform.* Trade-mark/ — This species of property has recently become of much importance, and the books are full of closely fought cases. The manufacturer, or person for whom goods are manufactured, has a right to distinguish the goods he manufactures or sells by a peculiar mark or device, in order that they may be known as his in the market, and that he may thus secxire the profits that their superior repute as his may be the means of gain, and this right will be protected by injimction." Where one had adopted the term " Cocoaine " to designate a hair oil, the use of " Cocoaine " was restrained ;' so " McCardel House " to designate a hotel ;° so " Ferro Phosphorated " to designate a new medicine ;° "Yankee Soap " to designate a shaving soap ;" " Scheidam Schnapps " to designated a liquor ;" so when plaintiff published a paper called "The K"ational Police Gazette," the publication of one called the "United States Police Gazette" was prohibited;''" so the use of " Bismarck " to designate a particular style of paper collars ;'" so "Mrs. Winslow's Soothing Syrup," and "Akron" to desig 1 Newberry v. Qarland,Zl Barb, 132. Inj. 405, 535, Addison on Torts, Hill. ' Pearse v. Pettis, 47 Barb. 376 ; see on Torts, 3 Broom's Com. 585, Broom's Kinney v. Kiernan, 3 Lans. 493. Com, ou Com. Law, 89, 654, Estee's PI. ' Dustan v. McAndrew, 10 Bosw. and Prac, Mr. Perkins' note to Bur- 130 ; Gook v. Eelley, 9 id. 358, 1 Pars, gess v. Burgess, 3 De Gex, McN. & on Cont., 5th ed,, 846, note y. Qord, 896 ; Browne on Trade-marks. * Monroe v. Reynolds, 47 Barb. 574; * Williams v. Johnson, 3 Bosw. 1, Karker v. Haverly, 50 id. 79 ; Morange ' Burnett v. Phalan, 5 Abb. N. S. v. Morris, 3 Keyes, 48 ; McGool v. 313, 3 Keyes, C94, 9 Bosw. 193. Jacobus, 7 Rob. 116. « McCardel v. Peck, 38 How. 130. ' Upon the subject, generally,see note ' Caswell v. Dam's, 4 Abb. N. S. 635, 10 Abb. Pr. Rep.' N. S. 849 ; also note 11 How. 76, Am, Law Beg. N. S, 707, et seq., Upton's '" Williams v, Johnson, 3 Bosw, 1. Law of Trade-marks, Lloyd's Law of " Wolfe v. Oonlard, 15 Abb, 336. Trade-marks, Copinger's Law of Copy- " Matsell v. Flanigan, 3 Abb. N. S. right, 16 U. S. Statutes at Large, 310, 459. ■Danieira Ch'y Prac,, 3 Story's Eq. Jur. " Merserole v. Tynberg, 36 How. 14, § 951, Smith's Man. of Com. Law, 101, 4 Abb. N. S. 410. 103, marg. pp., Kerr on Inj., Hill, on " Curtis v. Bryan, 86 How. 33. 446 COMPLAINT IW PARTICULAR CASES. [CH. IV A. nate a cement, although combined with other words, if calculated to deceive.' When the plaintiffs had for years been carrying on business at JSTo. 22 Pall Mall, under the name of " The Guinea Coal Com- pany," and the defendant commenced business at 46 Pall Mall, under the name of " The Pall Mall Guinea Company " held, that although plaintiff could not appropriate the term " Guinea Coal Company," yet defendants coiild be restrained from using that name in a particular place, to wit : " Pall Mall," in such a way as to lead persons to believe that his business was that of the plaintiffs." An injunction lies at the suit of the owner of &pecuUar product of nature, to protect him in the exclusive use of a name belong- ing to it alone, and properly employed by him as his trade-mark in its sale. There is no distinction between natural and those which are artificial.^ As " Congress Spring," to designate medi- cinal waters of a certain spring.' A sale of the spring carries, without an assignment, the right to the trade-mark.* So the use of numbers, as, " 303 " and " 753 " to designate steel pens, if cal- culated to deceive, will be restrained." A son of the same name as the father will not be restrained from using his name to desig- nate an article manufactured by him, although the father has done the same thing, no fraud being proved.' ISTo trader can adopt a trade-mark so resembling that of another trader that persons purchasing with ordinary caution are likely to be misled, though they would not be misled if they saw the two marks side by side, l^or can a trader, even with same claim to the mark or name, adopt a trade-mark which will cause his goods to bear the same name in the market as those of a rival trader ' — in many cases, even though it be a common name.' Each case falling witliin the latter class must, however, be decided upon its ^Newman y. Alwrd, 35 How. 108, ^ Burgess v. Burgess, oDeGe'Si,McN. 49 Barb, 588 ; see Burgess v. Burgess, & Gord. 896. 3DeGex, McN, &Gord.896; and Can- '' i^ei.w v. Promzendo, L. R.,1 Ch. die T. Deere, 4 Am. Law Timea, State App. 193; Williums^^. Johnson,2'Bosvi. Courts Rep. 367. 1 ; Jos. Dixon, etc. v. Beyer Guggen- ' Lee V, Haleii, L. R., 5 Ch. App. 155 ; heimer, 3 Am. Law Times, State Courts, see Burgess v. Burgess, 3 De Gex, McN. 28S, elaborately considered. & Gord. 896. s Derr)/ v. Truefitt, 6 Beav. 66 ; Croft " Congress, etc. v. High RocJc, etc., 10 v. Day. 7 Beav. 84 ; Clarke v. Freeman, Abb, N. S. 349. 11 id. 113 ; Bedde v. ITorman, 3 Bng. ■' Congress, etc. v. Eigh Rock, etc., 10 Rep,, L, R,, 14 Eq. 348 ; but see Canal Abb. N. S. 349, Vo. v. Clark, 13 Wall, 311. <■ GHllott V. Kettle, 3 Duer, 684, CH. IV A.J COMPLAINT IN PAKTICULAE OASES. 447 own merits.' The proprietor can have but one trade-naark, and it must be affixed to his goods. Mere declarations or advertisements cannot confer a right to one." The principles upon which equity- protects one in the use of a trade-mark does not apply to the pub- lication of newspapers to protect the proprietor of a paper in the use of a nam,e adopted by him for such newspaper.' And if the names are so far different that, considering the dissimilarity of type and general appearance, one is not liable to be mistaken for the other, an injunction will not be granted." The trade-mark only protects the proprietor in the sale of the particular class of goods on which it has been used. If it has been used on un/printed cotton cloths another may use it on printed goods.* If only a small quantity of goods, with the trade-mark, be sold by mistake to plaintiff 's agent, the action will not lie." If a trade-mark be calculated and intended to mislead the public, the courts will not protect its use." If used by an " executor," " assignee " or " successor " it should show such fact.' Nor will a court of equity protect a trade-mark or place of busi- ness if it be shown that the plaintiffs habitually and intentionally sold short weight.' Trespass.' — Notwithstanding the abolition by the Code of this technical term, it will, as a matter of convenience, be used 'jSefeov. Pra»ez«re(fe),L. R.,lCli. App. 523; Fetridge v. Wells, 4 Abb. 144; 198 ; Oandee v. Deere, 4 Am, Law Times Partridge v. Menek, 1 How. App. Cas. State Court Rep. 267, 10 Am. Law Bofi:. 547, 561 • but see Fetridge v. Merchant, N. S. 694; Town v. Stetson, 5 Abb. N. 4 Abb. 156; Curtis v. Bryan, 2 Daly, S. 218; Foote v. Buchanan, cited 3 812. Am. Law Rev. 781 ; Faber v. Faber, '• Sherwood v. Andrews, 5 Am. L. 3 Abb. N. S. 115 ; Williams v. John- Reg. N. S. 588 ; Gorwin v. Balg, 7 son, 2 Bosw. 1 ; 1 Bininger v. Wat- Bosw. 332 ; but see Edlesten v. Vick, ties 28 How. 206 ; Newman v. Al- 11 Hare, 78. vord, 49 Barb. 591-2 ; Gorwin v. Daly, * Lee v. Haley, L. R., 5 Ch. App. 155. 7 Bosw. 222; Oillott v. Esterlirook, "Upon the subject, generally, see 47 Barb. 463. Jacob's Law Diet,, title Trespass ; Add. '^ Gandee v. Deere, 10 Am. Law Reg. on Torts, Hill, on Torts, 3 Broom's N". S. 691. Com, 381, 3 Stepb, Com,, 6tlL Eng. ed., _ hens V, De Gonto, 4 Abb. N, S, 523, et seq., id, 736, id, 486 ; 1 Chitty's PI. 47, 7 Rob, 343 ; Leather Gloth Go. y. 135, e< «e?., Williams's Notes to Saund. Am,. Leather Gloth Go., 11 House of Rep., eds. of 1845 and 1871, title Tres- Lords Cas. 523 ; see Edelstein v. Vick, pass, will furnish tbe student with the 11 Hare, 78 ; see also Swift v. Dey, 4 means for thorough investigation as to Rob. 611. this action, Cowen's Treat, (Kingsley's ^ Amoskeag, etc. v. Garner, 6 Abb, ed.). Wait's Law and Pr,, Bouv Inst., N.S. 365, 55 Barb, 151. Bouv, Law Diet,, Burrill's Prac, ' Quilhon v. Undo, 9 Bosw. 605. Graham's Prac., Tidd's Prac, Estee'.s ' Leather Gloth Go. v. Am. Leather PI, and Prac, 3 Conw Rob. Prac, 4 Gloth Go., 11 House of Lords Cases, id,, Smith's Man. Com, Law, title Torts. 448 COMPLAINT IN PARTICULAR CASES. [CH. IV A. herein. Trespasses are of two kinds : 1. Upon real estate or real property ; 2. Injuries to ^ersowaZ property. The first is defined to be an entry upon another man's ground without a lawful authority or the doing of some direct damage, however inconsider- able, to his real property.' To distinguish it from trespass to his person or his goods it is technically called trespass qua/re clausiom fregif Under the old practice the breaking and entry of the plaintiff''s close was the gist of the action, and all injuries there- after committed mere matters in aggravation of damages,' and if the plaintiff failed to prove the breaking and entry the action failed, although the other injuries might have been fully proven.'' The rule is, perhaps, more liberal since the Code ' as to what will be held a complaint in trespass quare clausum after a trial with- out objection, but a good practitioner will be careful that no such question can arise upon his pleadings. The distinction between trespass quare clausum and a simple trespass for an injury to personal property is still of importance. For instance, as before shown, the owner of an animal is liable for any injury it may commit while trespassing upon the lands of another, although he have no knowledge of its vicious propen- sity;" and if diseased sheep trespass upon a neighbor of their owner he may recover the damages to his sheep if he sue in trespass quare clausum without proof of scienter ; otherwise if he do not bring trespass quare clausum.'' So a judgment for the defendant in an action quare clausum fregit, and taking a piano is not a bar to an action for taking the piano.' The vendee of land, under a contract for a deed, has sufficient possession to maintain this action against his assignee of the contract, who wrongfully cuts > 3 Broom's Com. 281, Broom's Com. 30 How. 16, 27; Dumont v. Smith, 4 on the Com. Law, 774. Denio, 319. = 3 Steph. Com., 6th Eng. ed., 523. ' Phillips v. De &roat, 2 Lans. 192 ; 8 2 Greenl. Bv., § 273 ; Sowe v. Wil- Golton v. Jones, 7 Rob. 164. stm, 1 Denio, 181 ; Van Leuven v. Lyke, ' Van Leuven v. Lyke, 1 N". T. 515, 4 4 id. 137, 1 N. Y. 515 ; Hall v. Hodskins, Den. 127. 30 How. 16, 27 ; Haight v. Badgeley, ' Dunckel v. Koeker, 11 Barb. 387, 15 Barb. 499 ; Houghtaling v. Hough- 389, 4 Conw. Rob. Prac. 589 ; Barnum taling, 5 id. 379, 4 Conw. Rob. Prac. v. Van Dusen, 16 Conn. 200, cited 590 ; Dumoni V. /Smii/j, 4 Denio, 319. 3 Pars. Cont., 5th ed., 223, note; ^ Sames v. Prentice, 8 Cush. 337, Cook v. Waring, 2 Hurl. & Colt, overruling Sampson v. Henry, 13 Pick. 331 ; Fisher v. Clarke, 41 Barb. 329 ; 36, 2 Greenl. Ev., 8 373 ; Howe v. Wil- but see Mills v. JV. Y.,ete., 2 Rob. 336, son, 1 Denio, 181 ; Van Leuven v. Lyke, 41 N. Y. 619, if allowed to go at large ; 4 id. 127, 1 N". Y. 515 ; Hall v. Hodskins, see post, title " Warranty." 8 Gilbert v. Thompson. 9 Cush. 348 CH. IV A.J COMPliAIWT IN PAETICULAE CASES. 449 or removes timber therefrom.' The owner of land has a right to the support of his soil in its natural condition, but has no right to require support for it with a superadded structure." One may pull down his own house without shoring or propping up an adjoining house though it fall for want of the support it before had," if the work of excavation be properly done, for it is the duty of the adjoining owner to shore or prop up his own building so as to make it secure.* The right of the owner of land to the lateral support of his neighbor's land is not an absolute right, and the infringement of it 'is not a cause of action without appreciable damage. There- fore where A dug a well near B's land, which sank in consequence, and a building erected on it within twenty years fell, and it was proved that if the building had not been on B's land the land M'ould still have sunk, but the damage to B would have been inap- preciable, held that B had no right of action against A.° This right of support is not in the nature of an easement, but is the ordinary right of enjoyment of property, and, till that is inter- fered with, the owner has no cause of action, although something may have been done which has occasioned results that will after- ward aifect his property ; so that if one dig so near his neighbor's land that it fall in, and more than six years afterward his neigh- bor's house be injured, no cause of action accrues until such injury.' One who sells land for a particular purpose, requiring more than ordinary support, cannot dig so near the line of the land so sold as to deprive the purchaser of the support required for the purpose with which the purchase was made.' It is no ground of action that a person, by stopping up on his own land the continuation of a public footway over his neighbor's land, causes the public to trespass on other parts of his neighbor's land, ' Phillips Y. DeGratt, 2 Lans. 193. 35 N. Y. 345 ; Ooster v. Mayor, etc., 43 ^ Radcliff V. Mayor, 4 N. T. 196, 201, id. 413. 204 ; Pauton v. Holland, 17 Johns. 93 ; " Lasala v. Holbrook, 4 Paige, 169 , Wyatt V. Harrison, 3 Barn. & Ad. Paeyton v. Mayor, 9 B. & C. (17 Eng. C. (23d Eng. C. L.) 871 ; Partridge v. L.) 735 ; Massey v. Godyer, 4 C. & P. Scott, 3 Mees. & Welsb. 330; Board, (19 Eng C. L.) 161. etc., T. R. B. Co., L. R., 3 C. P. 631, 625. ' Smith v. Thackerah, L. R., 1 C. P. ^ BadcUff V. Mayor, 4 N. Y. 301 ; 564 ; Benomi v. Backlwuse, 9 H. L. Gas. Peyton v. Mayor, 9 Barn. & Cress. (17 503 ; Farrand v. Marshall, 19 Bart). 380. Eng. C. L.) 725, 2 Wasli. Real Prop. « Backhouse r. Benomi, 9 H. L. Cas. 276, 299, 330-333 ; Farrand r. Marshall, 503. 21 Barb. 409, 19 id. 380 ; McKeon v. ' Elliot v. Northeastern Railway, 10 See, 4 Rob. 467 ; Austin v. Hud. B. B., H. L. Cas. 333, 2 Wasb. Real Prop. 388 57 450 COMPLAINT IN PAKTICULAR CASES. [ClI. IV A. to his damage.' If A wrongfully enters B's close and leave his property, B may enter A's and return it.'' So if A wrongfully enters upon B's land and take his goods, B may lawfully enter upon A's land and retake them.^ Otherwise if one's property be on another's land without the latter's fault.* So A may enter upon B' s land and stop a water-course which A has no right to keep open, though such stoppage cause damage to B." And an adjoining owner may enter upon his neighbor's land to make or repair a division fence." A lessee of a farm, who fixes a boundary line between himself and his neighbor, is so far estopped from show- ing that such line was erroneously settled that he cannot maintain trespass against his neighbor for taking and carrying away the crops upon the assumption that the line agreed upon between them was the true line.' One tenant in common cannot main- tain an action against his co-tenant, or one who enters by license from him, for entering upon the lands owned in common." One who goes to an attorney's office, pursuant to request by letter, to pay a note, and after obtaining possession of it tears it up, is not liable in trespass for the entry ; " although he would be liable in tort for destroying the note, and might even be liable to a criminal prosecution for larceny." The owner of real estate, who is not in possession thereof in law, or in fact, cannot main- tain an action for a trespass thereon,'' unless the premises are in possession of a tenant-at-will ;"' although the owner may maintain an action on the case against a tenant who wrongfully cuts trees '^ if the complaint state the/aefe showing he is a reversioner."" So the owner may maintain the action after he becomes possessed of the real estate.'^ To maintain trespass for an entry on plaintiff's ' Balgrmie v. Bristol, etc., 1 Hurl. cSs '» People v. Gall, 1 Denio, 130 ; but Norm. 369. see People v. Miller, 14 Jolins. 371. '^ Beav. S Steward, 2 Mees. & Welsb. ^^ Frost v. Duncan, 19 Barb. 560: 424. See 3 Post. & Pinl, 203, note. Freer x. Stotenhur, 36 id. 643 ; Rath- 3 Patrick v. Golerick, 3 Mees. & bon v. McConn.ell, 20 id. 311, 31 N. Welsb. 483. See Spencer v. McOoioen, Y. 466 ; Phillips v. De Groat, 2 Lans. 13 Wend. 256 ; 3 Post. & Pinl. 303, 195 ; Gardnsr v. Heart, 1 N. T. 538. note. " Phillips v. Be Qroat, 3 Lans. 195-6. '' Anthony v. Haney, 8 Bing. (21 Bng. " Scliemerhorn v. Buell, 4 Denio, G. L.) 186. 433 ; Vandu.sen, v. Young, 29 N. T. 30. ' RoUrts V. Rose, L, R., 1 Excli. S3 ; '' Rathlone v. McGonnell, 30 Barb. Packer v. Rochester, etc., 17 N. Y. 3S:j. 311, 21 N. Y. 466. ' Garpenter v. Halse.y, 60 Barb. 45. '' Cowenhoven v. Brooklyn. 38 Barb. ■" Dewey v. Burdioelt, 9 Wend. 65. 9 ; HotcJikiss v. Auburn, etc., 36 id. * RoAoson V. Morse, 4 Pick. 137. 600. ' Damont v. Smith, 4 Denio, 319. va. IV A.] COMPLAINT IN PAIOTICtJLAR CASES. 451 real estate he must show that he had an actual, peaceable posses- sion of the premises, and that it was obtained in a fair and legal manner.' The party showing the oldest possession is entitled to recover of the latest, whether the property be real or personal." If fruit drop from one's tree on to another's land the owner may go after it f or if a tree accidentally fall upon a neighbor's land.^ If a tree grow near a boundary line, so that its roots extend on each side, it is, it seems, the property of him on whose land the trunk stands ; if the line divide the trunk, it seems it belongs to both.' "Where line trees are destroyed by one of the adjoining proprie- tors, trespass lies by the other, whether his interest be several or as tenant in common." It is a trespass for one to allow water to run from his eaves upon his neighbor's premises ' although he may acquire a right of drip by an user for twenty years. * If one cut timber by leave of the owner of real estate after the date of a deed thereof but before the deed be delivered, he is not a trespasser for removing the timber, however fraudulent the object of the grantor. The doctrine of relation does not apply to such a case." But one who redeems lands sold on execution, after receiving the sheriff's deed, can maintain an action in the nature of waste, or an action on the case, against any person who, intermediate the sale and sheriff's deed, cuts and takes timber from the premises ; and this though he be the purchaser on the sheriff's sale and cut the timber with the consent of the judgment debtor who was in possession.'" Replevin would not, however, lie." But a mortgagee in possession may recover in waste or trover after he obtains a perfect title by foreclosure."' The owner of fixed property is, in general, responsible that it be so used that another shall receive no injury therefrom, as from throwing objects therefrom " or carelessly firing a blast which ' 31 Penn. St. 304. Newman, 11 Ad. & Ell. (39 Eng. C. L.) ^ Kellogg v. Valentine, 31 How. Prac. 40. 236 ; Broion v, Peahody, 2. Abb. 311, » NeaZe v. Sealey, 47 Barb. 314. 13 N. T. 121. » Pratt^. Potter, 31 Barb. 589 ; Tahor ^ Anthony v. Raney, 8 Bing. (31 Eng. v. Robinson, 36 id. 483. C. L.) 193 ; Hoffman v. Armstrong, 46 '" Thomas v. Grofut, 14 N. T. 475 ;. Barb. 337. Bioh v. Baker, 3 Denio, 79. * Sheldon v. Sherman, 43 Barb. 371. " Mich\. .Safer, 3 Denio, 79 ; Thomas ° Duiois V. Weaver, 35 N. T. 133. v. Grofut, 14 N, Y. 47S. « Dubois V. Weaver, 35 N. Y. 123. " Laflin v. Griffiths, 35 Barb. 58. 1 Bellows V. Sackett, 15 Barb. 96 ; " Althorfe v. Wolf, 33 N. 1 . 355 , McKeon v. See, 4 Rob. 467 ; Tucker v. Oorrigan v. Union, etc., 98 Mass. 577. 453 COMPLAINT IKT PAETICULAE CASES. [CH. IV A. throws roeks therefrom ' upon one who is passing upon a path- way thereon.'' Trespass may be maintained by the owner of a pew in a church against one who disturbs him in its possession." One is not liable for temporarily obstructing a street with materials while building." It has been held, at nisi prius, that if one nail a board to his own wall so as to overhang his neighbor's premises, trespass does not lie for the injury,' but we doubt the soundness of the case." The term " trespass," when applied to injuries to personal property, has been defined to be a direct injury, one caused by immediate force or violence, actual or implied, to personal property.' As if one throw a log of wood into a highway, and by the act of throwing another person is injured, the remedy under such circumstances is trespass. But if the log reaches the ground, and remains there, and a person falls over it and is injured, the remedy is ease, as the injury is not immediately con- sequent on the act done.' In general a slight interference with the property of another, as by signing an indemnity bond, renders a party liable f but an execution creditor does not, by becoming a party to an interpleader suit, ratify or adopt the act of the sheriff, so as to render himself liable in trespass for the seizure of the goods which are the subject of the interpleader," although the property be sold under an interpleader order ;" nor is a purchaser under an execution liable unless he remove or interfere with the property purchased ;'° nor a sherifi' for merely requiring a certificate of indebtedness." So an attorney who issues an execution is not liable for a sale of goods under it by the sheriif,''' unless he direct the sheriff upon what to levy or actively interfere.'" It has been held in ^ DriscoUy. Newark, etc.,?jT5^.Y.QZl. Eemng x. Hoppock, 15 N. T. 409; ''DriscoU\.N6imrk,etc.,?,'TS.Y.&^'7; Poxzoni v. Henderson.^ E. D. Smith, Martin v. Houghton, 1 Abb. N. S. 339. 146 ; Ball v. Loomis, 29 N. Y. 417. 8 Shaw V. Beveridge, 3 Hill, 36. " Woollen v. Wright, 1 Hurl. & Colt. ■• People V. Cunningham, 1 Denio, 554. 534 ; see, also, 33 Penn. St. 68-9. " Walker v. Olding, 1 Hurl. & Colt. 631. 5 Pickering v. Rudd, 4 Camp. 319, " 38 Penn. St. 517. 330, 3 Camp. Lives of Cli. Just. 169. ^^Wood v. Orser, 25 N. T. 348. ^Pinchin v. London, etc., 1 Kay & ^' Ford v. Williams, 13 N. Y. 577; Johns. 34 ; Hawthorn v. Leland, 43 Dames v. Jenkins, 8 N. Y. Leg-. Obs. 38, N. Y. 547. 11 Mees. & Welsb. 745 ; Ghilders v. ^ Broom's Com. on t&e Com. Law, 135, Wooller, 3 Ellis & Ellis (105 Eng. 0. L.), 683,1 Chit. PI. 135, ci seq., Steph. PL 16. 387. 8 Broom's Com. on the Cora. Law, '^ Ford v. Williams, 34 N. Y. 359; 135, 1 Chit. PI. 135, et seq., 133, et seq. Bowles v. Senior, 4 N. Y. Leg. Obs. 374. ^ Davis V. Newkirk, 5 Den. 93; 8 Q. B. (55 E. C. L.) 677. CH. IV A.J COMPLAINT IN PAETICULAR CASES. 453 England that a party who directs a suit to be brought against A, junior, without further direction, is liable if a suit be brought against A, senior, and his property sold.' The rule is otherwise, however, in New York," unless the party knowingly sets a void process in motion,' or causes an execution to be issued upon a paid judgment." So it has been held that the plaintiff in an execution is not liable for directions given by his attorney without proof that he authorized or approved of them after given ;" nor is an officer who issues process liable for its execution after the return day even though it be irregular and void." Where process is set aside as irregular, the party suing it out is liable for its execution; otherwise if the judgment be reversed on appeal.' The slightest intermeddling with the property of another, to his exclusion, is usually sufficient to render the inter- meddler liable, although there be no manual interference with the property or actual change of possession." "Where the plaintiff, the bailee of a wagon for a year, let it to the defendant, and it was used by H. and brought back broken, when plaintiff sent it to a shop for repairs, defendant and H. took it to another shop, had it repaired and returned it to plaintiff, held, the bailment to defendant continued until the wagon was repaired and returned, and he was not liable for wrongfully tahing the wagon from the shop.' Although a constable having an attachment against the owner of property levied upon by a sheriff may levy his attachment upon the same property, yet he is liable, in trespass, to the sheriff for taking the property from his possession," Where an act is done pursuant to one's direction, he cannot show it would have been done without such direction." A thief may maintain an action ' Jermain v. Hooper, 6 Man. & Gr. 8 Barb. 213 ; Connah v. Rale, 33 Wend. (46 Eng. C. L.) 827. 463 ; Boyee v. Brockway, 31 N. T. 493 ; ' Amrill v. Williams, 1 Den. 501. Bond v. Willett, 1 Keyes, 880 ; Fonda 3 Kerr v. Mount, 38 N. T. 659. v. Van Home, IS Wend. 631 ; Copley * Lewis V. Palmer, 6 Wend. 367 ; v. Rose, 2 N. Y. 115 ; Oibhs v. Gliase, 10 Brown v. Metor, 7 id. 301 ; Wisner Mass. 135; Miller v. Baker, 1 Met. 37; V. i?«Wey, 15 id. 331 ; MeQ-uinty y . Her- Greene v. Kennedy, 46 Barb. 18; Gan^ nek, 5 id. 340. tine v. Olarke, 41 id. 629 ; Coats v. ° AveriU v. Williams, 4 Den. 395. Darby, 2 N. Y. 517. « ranRensselaerv.Kidd,6N. Y.S31. ^ Bldridffe v. Adams, niBarh. ilT. '' Kissoek v. Grant, 34 Barb. 149 ; '» Bimson v. Berry, 5.1 Barb. 620. Simpson v. Hornbeck, 3 Lans. 53. " Goats v. Darby, 2 N. Y. 517, over- ' 2 Greenl. Bv., g 621 ; Wintring- ruling Derrick v. Hanley, 1 Gaines, ham V. Lefoy, 7 Cow. 735 ; Judson v. 253. See Kidzie v. Sackrider, 14 Johns. Cook, 11 Barb. 642 ; Farrar v. Ghauffe- 195. tete, 5 Deuio, 537 ; JSfeff v. Thompson, 454 COMPLAINT IN PARTICULAE CASES. [CH. IV A. of trespass against a mere wrong-doer.' So a widow may main- tain trespass for a calf owned by her husband, against any one but his personal representative.'' The owner of cattle, who leaves them in possession of an agister, is liable in trespass for any injury they may commit.' One who drives trespassing cattle into the high- way, without injuring them, is not liable for any injury they may subsequently sustain, without his fault,* unless they come iipon his premises by reason of his own defective fence.' In such case he should drive them back upon the premises of their owner, for it is in consequence of his own fault that they are there." So a bailee without hire is not bound to keep articles deposited with him after he has offered to deliver them and made an actual tender to t*he owner; and if, upon tender thereof, the owner refuse to take them away, the bailee may lawfully place them off from his premises without responsibility for their subsequent loss." One who merely sets a dog on sheep, to drive them from his premises, is not liable if he call off the dog immediately after the sheep leave the premises.' One who purchases premises, on the fore- closure of a mortgage, acquires title to the crops, and may main- tain trespass against one who cuts and removes them." So crops go to a devisee, unless required to pay debts,' imless the crops be specifically excepted on the sale." An officer who severs the guard of a watch, and levies upon it, is liable, although the watch be handed to him to look at, if the guard be still around the owner's neck." If a party in possession of another's wagon take off part of its appendages — as the whiffle- trees — and substitutes others belonging to himself, and the owner repossesses himself of the wagon without knowledge of the change, trespass cannot be maintained against him for the substituted articles ; the only action, if any, which lies against him is trover after a demand and refusal." If the owner of property forbid its ' Ward V. People, 6 Hill, 144 ; People « BouMon v. McClelland, 3 E. D. V. Bennett. 37 N. T. 131. Smith, 60. « Brigham v. Bush, 33 Barb. 596. ' 1 Hilliard on Torts, 1st ed., 144. 3 Stafford v. Inrjersol, 8 Hill, 38 ; ' Jewctt v. Keenholts, 16 Barb. 193. Sheridan v. Bean, 8 Met. 384 ; contra, ' Bradner v, Falkner, 34 N. Y. 347. 31 Penn. St. 525. >» Sherman v. Willett, 42 N. T. 146. * 32 Pemi. St. (8 Casey) 65 ; Stevens " JItick v. Parks, 8 Gray, 517. V. Curtis, 18 Pick. 237. '- Parker v. Walrod, 13 Wend. 397 <■ Cdrruthers v. Bollis, 8 Ad. & Ell. 16 id. 514. (35 Eng. C. L.) 113. CH. IV A.j COMPLAIISTT IN PAETICTJLAK CASES. 455 sale he does not waive his right of action by afterward purchasing at the sale ; ' nor by receiving the surplus on an illegal sale.^ But after the owner sues and recovers damages for an illegal sale he cannot maintain an action for the surplus.^ One who sells property received on a void contract after he has repudiated or rescinded it is liable in trespass." If A have B's goods which he is bound to deliver on demand, and he deliver them to C without the owner's authority, he is responsible for the refusal of such holder to deliver them to the owner thereof.* A carrier is not liable in trespass without proof of a conversion ; a negligent loss or failure to deliver is not suflicient.'' Even if one be a trespasser, as, for instance, if he wrongfully tie a rope which supports a platform to another's chimney, the party against whom the trespass is committed has no right to recklessly expose him to injury, as by unloosening the rope.' One who builds a high fence upon his own land so as to exclude the light from his neighbor's house is not liable for so doing though his motives be bad.' TrOTer." — This action was originally brought for the recovery of damages against; one who had found goods, and who had refused to deliver them on demand to the rightful owner but con- verted them , to his own use. From this fiction of a loss and finding of the goods (all trace of which is lost under the existing procedure) the remedy derived its name. Loed Mansfield, Chief Justice, described this action " as being in form a fiction ; in sub- stance a remedy to recover the value of personal chattels wrong- fully converted by a party to his own use. .It is an action of tort, and the whole tort consists in the wrongful conversion. Two things are necessary to be proved to entitle the plaintiff to recover in this kind of action : first, property in the plaintiff; and secondly, ' T'otSj v. WilUa/ms, 24 N. T. 359. " Upon the subject, generally, see * Brown y. Feetor, 7 Wend. 301 ; Broom's Com. on the Common Law, Wood V. JaaTcson, 8 id. 10; Burn v. 4tli ed., 136, 498-9,804, eise?., 3 Broom's Morris, 3 Cronip. & Mees. 579. Com. 356, 334, 3 Steph. Com,, 6tli ed., = CZffiT-A V. flfrfZocfc, 16 Wend, 607, 486,550, Cow, Tr., Kingsley's ed., ^ Good V, Gurtiss, 31 How. 4, Wait's Law and Pr., Bouv. Inst,, Bouv. ' Dunham v, Troy, etc., 3 Trans. Law Diet,, Tidd's Pr,, Burrill's Pr., App, 67, 3 Keyes, 543, Graham's Pr,, Estee's PI, and Pr,, Wil- ' Toland v, NationaZ, eta., 4 Abb, N, liams's notes to Saund. eds. of 1846 and S, 816, 1871, 1 Chitty's Pl„ Bteph, PI. 18, 19, ' Phillips v. Wilpere, 2 Lans, 390, 40, 3 Oonw, Rob, Pr„ 4 id.. Smith's, ' Piekard v. Collins, 33 Barb. 445 ; Man, Com, Law, title " Torts," McKeon v. See, 4 Bob, 467, '» Cooper v. Ghitty, 1 Burr. 31. 456 COMPLAINT IN PAETICULAR CASES. [CH. IV A. a wrongful conversion b}^ the defendant. This form of action then is adopted to try the title to personalty, though it does not lie for chattels annexed to the freehold ; it is, in some respects, analagous to trespass for goods taken and carried away ; the latter, however, is founded on possession, actual or constructive, while trover is founded on a right of property coupled with a right of possession. Force does not enter as an ingredient into the constitution of a right of action in trover.' A conversioa may be evidenced by a wrongful taking of the goods of him who has a right to the immediate possession of them, when no formal demand of the goods and refusal to deliver them need be shown in order to support an action for their recovery. A demand and refusal are necessary in all cases where the defendant in the first instance became lavjfully possessed of the goods, and the plaintiiF is not prepared to prove some distinct, actual conversion of them.'' We have thus given a somewhat extended statement of the action before the Code, because although the/brm is abolished the cases where an action for the same purpose may be sus- tained are the same as under the former practice. A and B verbally treated for the purchase of a horse by the former from the latter. A few days after B wrote to A saying that he was informed there was a misunderstanding as to the price, A having imagined he had bought the horse for thirty pounds, B that he had sold it for thirty guineas. A thereupon wrote B, proposing to split the difference, adding, " If I hear no more about him I consider the horse is mine at thirty pounds fifteen shillings." No money was paid and the horse remained in B's possession ; six weeks afterward the defendant, an auctioneer, who was employed by B to sell his farming stock, and who had been directed by B to reserve the horse in question, as it had already been sold, by mistake put it up with the rest and sold it. After the sale B. wrote to A a letter which substantially amounted to an acknowl- edgment that the horse had been sold to him. Held, that A could not maintain an action against the auctioneer for a conver- sion of the horse, he having no property in it at the time the defendant sold it, B's subsequent letter not having (as between A ' Broom's Com. on the Common Law, 801-9, as to when a demand is neces- 4th ed., 136-7. sary see ante, the present chapter, titles ' Broom's Com. on the Common Law, ■' Conversion " and "Demand." OH. IV A.] COMPLAINT IN PAETICULAB CASES. 457 and a stranger) any relation back to A's proposal.' Upon an agreement to sell property when the purchase-money shall be paid, the title in the mean time to remain in the vendors, the pnrchaser takes no title whatever, but merely a right to acquire it in future, and if he, without having paid the purchase-money, sell and deliver the property to a third person, the latter, although he buy in good faith and without notice of the original claim of the vendors, cannot hold the property As against them. Possession alone is not sufficient to enable the person having it to transfer the title to personal property by a sale even to a iona fide purchaser." An action lies for the conversion of money belonging to the plaintiff, and it may be sustained without prov- ing the specifi-C description of the bills or coin converted.' So for a chose in action which was pledged and converted by the pledgee,'' but an offer to pay the amount borrowed must be made on the day when it fell due;' otherwise in an action to redeem.' But if one be authorized by the holder of a bill of exchange to get it discounted and to apply the proceeds in a particular way, does get it discounted but misapplies a part of the proceeds, he cannot be sued in trover for the bill," although the action would have lain for the proceeds.'' An action of trover will not lie for the omission of a common carrier to deliver prop- erty, as where the property has been lost or stolen through negli- gence, and so not delivered to the owner. The remedy is assumpsit or a special action on the case.* One in whose name business is carried on by another to avoid his creditors has the legal title to property intrusted to him, by third persons, or its • proceeds in the course of such business, notwithstanding any secret agreement by him, with the person for whom he conducts such business, that he shall be only his clerk ; and he may main- ' Felthouse v. Brindley, 11 C. B. N. ■* Lucky v. Gannon, 37 How. 134, 6 S. (103 Eng. C. L.) 869. Abb. N. S. 209. ' Ballard v. Burgett, 47 Barb. 646, 40 ' BtitiM v. Burnett, 6 Abb. N. S. 303 ; N. Y. 314 ; contra, Vinaent v. Oornell, see Hardy v. Peyton 1 Rob. 261, modi- 13 Pick. 294. The case of McNeil v. fied, 41 N. Y. 619. Tenth Nat. Bank, 55 Barb. 59, was re- ' Palmer v. Jarmain, 2 Mees. &,Wels. versed upon tbe main point by the 282 ; Stierneld v. Holden, 4 B. & Cr. (10 court of appeals, in November, 1871 ; Eng. G. L.) 5 ; Walter v. Bennett, 16 N. 46 N. Y. 325. Y. 252. ^ Gordon v. Sostetter, 4 Abb. N. S. ' Clark v. Merchants' Bank, 1 Sandf. 363, 37 N. Y. 99 ; Donohue v. Henry, 4 498 ; Matter of Pie, 10 Abb. 410. E. D. Smith, 162; Graves ■^. Dudley, 20 ^ Tolano v. National, etc., 35 How, N. Y. 76. 496, 4 Abb. N. S. 316. 56 458 COMPLAINT IN PAKTICULAE CASES. [CH. IV A, tain an action to recovei' from them any thing converted by them to their own use against his will.' A having lost a £20 bank note, it was found by B, who took it to C to get it changed, telling him she had found it. C changed it, charging her two sovereigns for doing so. B afterward, on being taken up on a charge of stealing the note, gave A £Y as part of the change. In an action of trover brought by A against C to recover tlie value of the note, held, that the action was maintainable, and that the acceptance of part did not afSrm the act of B or waive the tort, but that it only went in diminution of the damages, the court saying : " It cannot be supposed for a moment that the plaintiff intended to confirm the act of the defendant or to waive the tort. I think the receiving of the seven pounds, under these circum- stances, does not ratify the act of the party in converting the note, and was not intended to ratify it. It only goes in diminution of the damages." ' If one purchase from a trespasser or thief trover will lie, after demand, for the property purchased, but not without a demand.'' No demand is necessary if goods be taken by trespass from a trespasser.^ This action cannot be maintained against one who has not been guilty of a conversion, who has never had possession of the property, and has had nothing to do with it except to take a mortgage upon it to secure a debt from one claiming to be the owner." The action lies notwithstanding the goods have been returned ; the return goes to the question of damages but not to the right of action ;' when an action has accrued, it can only be discharged by a satisfaction ;" but if the owner merely open the boxes and take an inventory of the goods it is not such a resumption of the property as will go in mitigation of damages.' An auctioneer, who inno- cently sells goods, is liable to the owner in trover." Trover lies for securities pledged on an usurious loan.' A bailee is bound to return the property bailed to the bailor at his peril. Where one ' PaMon V. Williams, 1 Rob. 340. v. Perkins, 11 How. 17 ; Sibbara v. '' Burn V. Morris, 3 Cromp. & Mees. Stewart, 1 Hilton, 207. 579, 4 Tyrwh. 485 ; Broion v. Feeter, 7 « MeKnight v. Dunlop, 5 N. Y. 537 Wend. 801 ; Wood v. Jackso?i, 8 id. 10. ' Gonnah v. Sale, 23 Wend. 463. 3 Barrett v. Warren, 3 Hill, 348. « Cole v. Clark, 8 Cusli. 399 ; Dudley * Mattiwean, etc., v. Bentley, 13 Barb. v. Hawley, 40 Barb. 397 ; Moore v. 641. Eldred, 43 Vt. 18 ; Fowler v. HolUns, 3 r V. Burling, 10 Jolins. 176 ; Eng. Rep. , L. R., 7 Q. B. 616. Reynolds v. Sliuler, 5 Cow. 333 ; Savage ' Schroeppel v. Corning, 6 N. T. 107 ; 5 Den. 336. CH. IV A.J COMPLAINT IS PARTICULAR CASES. 459 loaned another, a carriage, stored at a particular place, it was held to be the duty of the bailee to return it to the bailor, and that returning it to the place from which he obtained it was a conver- sion ;' although if the property bailed remain in the hands of the bailee trover cannot be maintained against him without demand of the property and refusal to return it, yet if the bailee deliver it to another such delivery is of itself a conversion, and proof of demand and refusal are not necessary.^ If one fraiidulently induce another to sell him goods trover lies therefor without a demand,'' although if the vendor receive any thing upon such a purchase he cannot maintain the action without tendering back what he so received,^ unless it be the obligation of the vendee which he may surrender on the trial."* Such rescission should be promptly made on discovery of the fraud. ° It is frequently a question of importance whether the plaintiff should waive the tort, and sound his action upon contract. Thus an infant is liable in tort though not upon contract, and where a complaint set forth an agreement between the parties by which the defendant promised to take and sell certain goods belonging to the plaintiff, at certain stipulated prices, and should receive for his services all he should realize upon the sale over and above such prices, and should return to the plaintiff the goods which he might not be able to sell in good order ; that plaintiff had demanded of defendant that he return the goods or account for the avails, pursuant to the agreement, and alleged that the defendant had neglected and refused to account therefor, and had not returned the goods, it was held that the action was upon contract, and that a finding that defendant had not returned the goods was not one that he had refused so to do or converted them to his own use. It was therefore held that infancy was a good defense." Where the cause of action really sounds in contract the plaintiff cannot, however, turn it into a tort for the purpose of charging an infant.' An infant -who hires a horse to drive to a certain place, and drives him to another ' Esmay v. Fanning, 9 Barb. 176, 5 " Central Bank v. Finder, 46 Barb. How. 338. 469 ; Bruee v. Davenport, 3 Keyes, 473, ^ Sehroeppel v. Gorning, 5 Den. 336 ; 5 Abb. N. S. 185. Gary v. Hotaling, 1 Hill, 311. « Manger v. Reas, 38 Barb. 75. ^ Gentral Bank v. Finder, 46 Barb. ■> Bobbins v. Mount, 33 How. 83, 4 467 ; My v. Mumford, 47 id. 633. Rob. 553. * Gentral Bank v. Finder, 46 Barb. 469, 460 COMPLAINT IN PARTICULAE CASES. [CH. IV A. is guilty of a conversion and liable in trover.' If personal prop- erty be loaned to another and he affix it to his real estate and sell that, the purchaser is not liable/ provided that the chattels be so affixed that they are essential to the support of a house or other party of the realty f othervpise if they can be easily separated from the realty without subjecting it to destruction or serious injury.* A party who sells the property of another as agent for one who brings it to him for that purpose is liable, however innocent his motives,' for it is the legality or illegality of the act, and not the good or bad motive of the doer, which renders him liable.' One who replevies property is liable, after verdict against him, to this action for the property replevied.' "Where one obtained a watch under an offer by the owner to deliver it as security for a loan and refused to return it or make the loan, it was held the owner could sell the watch, and the purchaser could maintain trover for the conversion ' on demand after such purchased Trover will lie to recover the value of coal dug by mistake by the owner of land, through a mistake of boundaries, out of adjoin- ing land ; the damages in case of such innocent mistake are the value of the coal in the mine and not after it is mined." But if property be knowingly converted by a wrong-doer he is liable for its value in any condition to which he may change it." Where the seller gave the buyer an order upon his wharfinger for twenty sacks of flour, and the wharfingei', as found by the jury, accepted it and delivered five sacks, saying it was all he then had, but would deliver the balance as soon as he got any. A demand was subsequently made on the wharfinger for the fifteen barrels, but he refused to deliver them, saying, he had none of the seller's 1 Msh V. Ferris, 5 Duer, 49 ; Morton Collins, 33 Barb. 444 ; Axiburn, etc. v. V. Gloster, 46 Maine, .520. Douglas, 9 N. T. 444 ; Aiken t. West- 2 Fryatt v. Sullioan, etc., 5 Hill, 116 ; era, etc. 20 id. 370, 383 ; Muchler v. afl&rmed, 7 Hill, 529 ; see Riclttmyer v . Mulholkn, halor's Sup. 363; Pratt v. Morss, 3 Keyes, 349 ; Thayer v. Wright, Potter, 31 Barb. 589. 4 Denio, 180. ' Yates v. Fassett, 5 Denio, 21. ' Ford V. Goii, 20 N". T. 351 ; Shel- » ^^u t. BoUnson, 2 N. T. 298. don V. Edwards, 35 id. 283. » Hicks v. Gleveland, 39 Barb. 573. « Mott V. Palmer, 1 N. Y. 564. '» Forsyth v. Wells, 1 Am. Law Reg. ' Anderson v. Nicholas, 5 Bosw. 131, N. S. 335 ; Hilton v. Woods, L. R., 4 38 N. Y. 600 ; Hndley v. Hawloy, 40 Eq. 433 ; Silsbury v. McCoon, 3 N. Y. Barb. 397. 379 ; Hyde v. Cooksoii, 21 Barb, 92. * Gates V. Lounsbury, 20 Johns. 437 ; " Hilton v. Woods, L. R., 4 Eq. 440; Lawrence v. Ocean Ins. Go., 11 id. 363 ; Silsbury v. McCoon, 3 N. Y. 379 ; G. S. Delancey v. Oanung, 9 N. Y. 9 ; Mornn v. Inhabitants, etc., Davies's Rep. 160 ; V. MeClearns, 41 How. 389 ; Pickard v. Hyde v. Gookson, 21 Barb. 93. CH. IV A.] COMPLAINT IW PAETICULAK CASES. 461 flour in his possession. Held, he was hable in trover for the vahie of iifteen barrels.' Where the defendant induced the plain- tiff to bring his threshing machine to the defendant's barn, when, claiming to be the owner of the wheels of the wagon on which it was transported he took them off; held, the jury having found he had no right to them, that he was guilty of a conversion of the machine as well as the wheels. ° A mortgagee, in a chattel mort- gage, who sells the property' mortgaged and delivers possession to the purchaser is not liable to a receiver of the debtor, sub- sequently appointed." It is only where a party has possession of property when a demand is made, that a refusal to deliver it is evidence of a conversion." After title has once passed by delivery the former owner cannot retake it, and if he do he is liable for a conversion.' Undertaking." — Sureties to an undertaking upon appeal by two appellants conditioned that " if the judgment appealed from, or any part thereof, be affirmed the said appellants will pay the amount directed to be paid by said judgment or the part of such amount as to which the said judgment shall be affirmed, if it be affirmed only in part," are liable if the judgment be affirmed as to one defendant and reversed as to the other ;' and so though it be reversed as to any personal liability of the appellant.' Where a statute provides for the giving of an instrument and its purport, it is consideration enough to support the instrument that it was given pursuant to the statute and has its sanction ;" otherwise if none be required and it do not in fact answer any purpose,'" or if the appeal be void." So a bond given under an order which affords a party his election to give it or not is valid.'" The legis- lature has power to change the rule of damages upon an under- ' QilUU Y. Sill, 3 Cromp. & Mees. Bail and Bail Bond, 1 Till. & Sheaf 530, 4 Tyrwh. 290. Prac. 589, id. 736. * Bowen v. Fenner, 40 Barb. 383. ■" Seacard v. Morgan, 4 Abb. N. S. 2 Mllmore v. Horton, 81 How. 424 ; 349, 35 How. 487. Toung v. BilUter, 8 H. of L. Cases, 683. ^ pg^^ ^ Townsend, 1 Abb. N. S. * Mllmore v. Horton, 31 How. 434. 159 ; Mills v. Forbes, 12 How. 466. ' Ohomibers v. Miller, 8 Fost. & Finl. » Slack v. Heath, 1 Abb. 331, 4 E. D. 303, and note. Smith, 95 ; Doolittle v. Dininny, 31 « See 3 Estee's PI. and Prac. 675, N. Y. 350. 169, 148, 165, 194, 1 N. Y. Prac, 310, 4 " Halsey v. Flint, 15 Abb. 867. Conw. Rob. Prac. 147, et seg., 1 Burr. " Ward v. Syme, 8 N. Y. Leg. Obs. Prac. 861 ; 3d ed., 398-395, 3 id., 36 id. 95, New York Com. Pleas. 146, 163, Graham's Prac, 3d ed,, 171, et " Ford v. Townsend, 1 Abb. N. S. 159. leq.; see Tidd's Prac.,4th Am. ed., title 462 COMPLAINT IN PARTICULAE CASES. [CH. IV A. taking after it is given.' The sureties in an undertaking to obtain the discharge of property attached are liable notwithstand- ing they were induced to execute it through the fraud of the agent, of the defendant unless it appear that the plaintiff was cognizant of such fraud.^ An undertaking by a defendant and sureties in a replevin suit which runs to the plaintiff instead of the sheriff is good,' and in an action on such an undertaking it is not necessary to aver the issuing of an execution against the defendant/ nor is it necessary upon any undertaking unless expressly so conditioned." In an action upon an undertaking given by the defendant to the plain- tiff, pursuant to sections 186 and 187 of the Code, to procure a discharge from arrest, the complaint is defective in not showing a cause of action where it omits to aver the fact substantially : 1. That an execution against the property of the defendant has been issued to the sheriff of the county in which such defendant was originally arrested, aad that the same has been returned by such sheriff unsatisfied in whole or in part. 2. That an execution against the l)ody of the defendant, having at least fifteen days between the teste and the return thereof, has been issued to the same sheriff', and returned that the defendant cannot be found within his county.* The parties can waive the issuing of an attachment, and if a defendant with sureties give an undertaking reciting that one has been issued, such recital is a conclusive waiver of the issuing of one, and neither the defendant nor his sureties can show that none was in fact issued.' The undertaking is suflBcient evidence of all the facts recited in it ; ' and if the com-t be one of general jurisdiction it is not necessary to allege facts showing it had jurisdiction.' A j-ight of action accrues to a defendant, in an attachment suit, upon an undertaking given on ' Horner v. Lyman, 4 Keyes, 237. sioners' Book of Forms, No. 99, p. 69, ' Coleman v. 'Berm, 33 How. 370, 3 and adopted by TiflFany & Smitli (3 N. Keyes, 94, 14 Abb. 38. Y. Practice, p. 69) is expressly disap- ^ Slack V. Seath, 1 Abb. 831, 4 E. D. proved in this case. Smith, 95, said to liave been affirmed * Coleman v. Bean, 32 How. 370, 3 in court of appeals, June, 1860, 6 Abb. Keyes, 94 ; Onderdonk v. Voorhies, 36 Dig., cases criticized ; Livingston v. N. T. 361. Hammer, 7 Bosw. 670. ■> Onderdonk v. Voorhies, 36 N. T. 358. * Wood V. Derrickson, 1 Hilt. 410. ^ Cruyt v. Phillips, 7 Abb. 205 ; see " Gauntley v. Wheeler, 31 How. 137, this case for form of complaint in 2 R. S. 383, § 31, 3 Edm. St. 397. The issuing attachment. form reported by the Code Commis- CH. IV A.J COMPLAINT IN PARTIOULAK CASES. 463 the issuing of an attachment as soon as the attachment is set aside ; ' and after an attachment is set aside an undertaking given to procure tlie discliarge of property levied on under the attach- ment cannot be enforced." Where the defendant undertook in writing with the plaintiff, in consideration that he would not imprison his debtor in any action brought or to be brought, that the debtor would at all times " obey and perform the orders and judgments of the court or courts in which any such action was brought or might be pending, and the judges or justices thereof," and plaintiff recovered judgment against the debtor, which he neglected to pay. Held, that the neglect to pay the judgment was a refusal and failure to " obey and perform the judgment of the court " within the meaning of the contract." The surety in a replevin iindertaking on the part of a plaintiff is liable for the costs on appeal from a judgment in favor of the defendant ;* so a surety on appeal to the county court is liable for the costs on affirmance of the justices' judgment by the supreme court, although it was reversed by the county court." On an undertaking under section 354 of the Code the sureties are not liable to pay the judgment below." Sureties to an undertaking are liable although the judgment is a lien upon real estate, and an execution has been issued and levied upon sufficient property to satisfy it.' It has been held that when the law requires that an undertaking shall be executed by the principal with sureties, the sureties were not liable unless the instrument was executed by the principal ;' but we think the authorities are the other way." Nor is annndertaking void because more favorable to the obligors than required by statute." A surety in an undertaking who pays a judgment against his principal cannot recover back the money paid thereon, although the judgment be reversed on appeal by the principal." An undertaking to pay the " defendants " the ' Freeman v. Young, 3 Rob. 666. * Onderdonk v. Mmmons, 9 Abb. 187 ; ^ Bildersee v. Aden, 10 Abb, N. S. 163. Wood v. Derrickson, 1 Hilt. 410. = Claflin Y. Ball, 43 N. Y. 481. ' Heebner v. Townsend, 8 Abb. 234. ' Tiblles V. O'Connor, 28 Barb. 538. * Bean v. Parker, 17 Mass. 604. -Smith Y. Grouse, 24 Barb. 433; ^ Shaw y. Tobias. 3 N. Y. 188; Van- Doolittle Y. Dirdnny, 31 N. Y. 353 ; dusen v; H/iyward, 17 Wend. 67. Wolcott Y. Holcomb, 31 id. 136 ; Rob- '" Vandusen y. Haywood, 17 Wend. inson v. Plimpton, 25 id. 484 ; Ball v. 67 ; questioning Latham v. Egerton, 9 Gardner, 21 Wend.- 270 ; Bennett y. Cow. 227. Brown, 20 N. Y. 99, 31 Barb. 158 ; " Garr v. Martin, 20 N. Y. 306 Gardner v. Barney, 24 How. 467. reversing 1 Hilt. 358. 464 COMPLAINT IN PAETICULAE CASES. [CH. IV A. amount of a judgment if it be affirmed binds the parties in favor of the survivor if one of the defendants dies ;' and so the sureties are liable to a substituted plaintiff." Sureties to an undertaking remain liable thereon although their principal be required to furnish farther sureties and he do so.' The sureties, as between themselves, are jointly liable in such case,* although the obligee it seems can and probably should bring separate actions upon each undertaking. Bail who are excepted to, and fail to justify, have, nevertheless, a right to surrender their principal." Sureties in an iindertaking continue liable although they have been excepted to, and failed to justify ; ° otherwise if another surety be substituted in his place and justify, although the exception to the first be countermanded.' Sureties in an undertaking to pay the amount of the judgment below, in case it be affirmed, are not liable if the judgment be affirmed with leave to the appellant to answer on payment of costs, and he avail himself of such leave.' In order to entitle the obligee to maintain an action upon an undertaking to pay in case of affirmance, there must be a, judgment of affirmance; an order that the judgment below be affirmed is not sufficient, nor will it remove the stay of proceedings." Yendor and TendeeJ" — When the v(>,ndee refuses to accept a sufficient deed of land the vendor is exonerated both from the obligation to convey and the obligation to return the portion of the purchase-money received on the contract," even though the contract be void by the statute of frauds."' On a stipulation to deliver merchandise between certain days the last day is not ' Bulge on Suretysliip, 65 ; Kipling ' Bowman v. Tallman, 28 How. 483, V. Turner, 5 Barn. & Aid. (7 Bng. C. 19 Abb. 84. L.) 361. " See ante, titles Sale, Specific Per- ' Emerson v. Booth, 51 Barb. 40 ; formance, and post, title Warranty. Potter V. Van Vanvranken, 36 N. T. See Dart's Vendors and Purchasers, 619. Hilliard on Vendors and Purchasers, 3 Jewett V. Crane, 13 Abb. 97, 35 Pars, on Oont., Add. on Cent., Washb, Barb. 208. on Real Prop., Rawle on Covenants for *■ Bergen v. Stewart, 28 How. 6. Title, Benj. on Sales, Hilliard on Sales, ' Qore V. Williams, 3 Anst. 658 ; Tlie Story on Sales, Add. on Torts, Hilliard King v. Sheriff, etc., 5 Term E. 633. on Torts. * Decker v. Anderson, 39 Barb. 346 ; " Simon v. Kaliske, 6 Abb. N. S. 335 ; but see ifc/niyre V. i?or«i, 26 How. 411. Monroe v. Reynolds, 47 Barb. 574; '' Melntyre v.Borst, 26 How. 411; but Havens v. Patterson, 43 N. T. 218. see Decker v. AndcrX'm, 39 Barb. 346. " Moak's Notes to Clarke's Ch. 350, ' Poppenhusen v. Seeley, 41 Barb. 450, ma/rg. p. 3 Keyes, 150, 31 How. 639. CH. IV A.J COMPLAINT IN PAETICULAK CASES. 465 included, and if the vendor is to give four days' notice of the time of delivery he must give four days' notice of the time exclusive of the day last named.' If there be a stipulation in a deed, or in another instrument not merged in it, that the vendor may retain possession of the premises for a time, and shall then deliver them to the vendee, the premises are at the risk of the vendee, and he must sustain the loss, if any, by lire or other casualty.'' So on an absolute con- tract for the sale of land authorizing the purchaser to take imme- diate possession.' The plaintiff agreed with defendant to ship on board a vessel a cargo of ice and dispatch the vessel with all speed to any ordered port in the United Kingdom, " the vendors forwarding bills of lading to the purchaser, and upon receipt thereof the purchaser takes upon himself all risk and dangers of the sea," and the defendant agreed to buy and receive the ice on its arrival and pay for it an agreed price in cash on delivery. The vessel was lost by risk and dangers of the sea within the meaning of the agreement, and after the receipt by the defendant of the bills of lading. Held, that the clause in regard to risk, etc., only relieved the vendor from liability for non-delivery and did not render the vendee liable to pay for the ice.' An agreement to sell and deliver certain oil described as " foreign refined rape oil, warranted only equal to samples," is not com- plied with by the tender of oil which is not " foreign refined rape oil," although it is equal to the quality of the samples.^ Where the seller gave a note, valid by the statute of frauds, of the sale of articles, it was held a question of fact for the jury whether he intended to be bound unless the buyer signed and returned a similar agreement." If the purchaser of real estate, by contract, be in default the vendor may maintain ejectment against him ' without notice to quit, demand of the amount due, or of the possession or the ' Fowler v. Regney, 5 &Wa. N. S. 183. *CasHev.P%/or(?,L.E.,5Exch.l65. ' Mott V. Ooddington, 1 Abb. N, S. « Nicliol v. Oodts, 10 Esch. 191, id. 290, 1 Rob. 267 ; see Qould v. Tliomp- 195, note to Johnson's Am. ed. son, 20 Pick. 134, 4 Mete. 224. « Moore v. Campbell, 10 Excb. 333. ^ McKechnie v. Sterling, 48 Barb. ' Barney v. Loper, 16 Barb. 639 ; 330, 334; Gates y. Smith,'!, Edw. Ch. FnUerv.ranGeeson,i'SiU,m,!i,mi:med 702; McLaren v. Hartford, etc., 5 N. Howard's App. Cas., 240; Wright v. Y. 151 ; see Gottld v. Thompson, 30 Moore, 21 Wend. 230 ; Harms v. Pat- Pick. 134, 4 Mete. 224. terson, 43 N. T. 218. 59 466 COMPLAINT liV PARTICULAR CASES. [CH. IV A. tender of a deed ;' he may also maintain an action against the purchaser for any injury done to the inheritance f but the latter is not liable for the rent or use and occupation during the time he occupies under the contract,' although it seems he is after the contract is ended by the seller, for then he is a tenant-at-will.* If the vendor by mistake, with the vendee's assent, obtain possession and is compelled to restore it, the vendee may maintain an action against him for use and occupation ;' although if the vendor properly reco\'er it in ejectment the vendee's rights in equity are ordinarily extinguished." If a vendee in possession refuse to give up the lands or to pay rent, and the vendor cannot make title, a court of equity M'ill order the agreement canceled, and will order the purchaser to account for the rents and profits.' A purchaser in possession of land under a contract to purchase may maintain an action for injm-y thereto by setting fire to the woods and fences;' and so may the vendor if the vendee be in default." If the vendee leave goods with the vendor after the con- tract of sale is executed, the law implies a promise by the vendee to pay the expense of keeping them ;'° although the vendor per- mitted him to take possession of the goods." Toluntary payments." — Money voluntarily paid to another with a full knowledge of all the material facts cannot be recovered back ;" as if one without request and without being evicted pays taxes against lands conveyed to him by a deed for quiet enjoy- ment ;" or pays a void tax under protest." Protesting against the payment does not change the rule,'° even though the payment be > Hotalinri v. Hotaling, 47 Barb. 163 ; ' Phillips v. De Ch-oat,2 Lans. 192. Pierce v. Tuttle, 53 id. 155. '" Roe v. Martin, 2 Cow. 417, Story on ' Vanduseii v. Tomig, 29 Barb. id. 9 ; Sales, S 404. not affected by the reversal, 29 N. Y. " Dibbleev. Corlett, 9 Abb. 200. 9 ; Phillips v. De G-roat 2 Lans. Ili2. " See, ante. Money Paid, as to indor- ^ iSmii/i V. Scioart, 6 Johns. 46 ; Dun- ser paying note without protest, and croft V. 'WarAell, 13 Johns. 489 ; Mce note to Partridge v. Partridge, Tal- note to Howard v. Shaw, 8 Mees. & bot's Rep., 3d ed., p. 228. Wels. 123, Johnson's Am. ed. ; Greatoii " Abell v. Douglass, 4 Den. 305 ; Y.Smith, 380; and see note to Tan- Searne v. Kinie, 5 Bos^'. 579; Wyman cred V. Christy, 12 Mees. & Wels. 324, v. Farnsworth. 3 Barb. 369. Johnson's Am, ed. '•' McCoy v. Lord, 19 Barb. 18. '^ HoioardY. Sha.zo,% ^lees. & Wels. ^^ Forrest v. Mayor, 13 Abb. 350; 118; see note to Johnson's ed. FlcHirood v. City of New York, 3 ' Hull V. Vauqlian, 6 Price, 157. Simdf. 475; Commercial BankY. City, « Goodwin v isfdi.n , 35 How. 402. cte., 42 Barb. 488 ; N. Y., etc., v. Merrit, ''King v. Kim/, 1 Mylne & Keen, 12 N. Y. 308; Hector, etc., v. Mayor, 442. ' itc, 10 How. 138. 'Rood Y.N. r.,c^'.,lS Barb. 80. '^Benson v. Monroe, 7 Cush. 125; CH. IV A.J COMPLAINT IN PAETIOITLAE CASES. 467 attempted to be enforced by legal proceedings,' although one be ignorant of facts so that a payment would not be voluntary, when he gives his note, the court will not presume he was when he paid the note, but he must prove he was then still ignorant of such facts. ° So if an executor pays the interest in a mortgage incumber- ing property, devised by the testator's will,' unless he pay it out of a fund belonging to such devisee as directed by the will.' Where a city by mistake paid more than the amount awarded for land taken, it cannot recover it back if the owner was told by the city authorities that that amount was awarded, and in conse- quence thereof he forbear filing exceptions to the report or attempting to review it.'' If one, who has agreed to do certain work after the other has removed certain obstacles, on his neglect to do so expend money in removing them so he can proceed with the work, such payment is voluntary and the amount so expended cannot be recovered back ;° so the payment of the principal and interest on an usurious loan.' An indorser, who pays a note to the holder under a mistaken belief founded on statements of the holder that he, the indorser, has been duly charged, or that a prior indorser has been, may, on discovering that he was not so charged, maintain an action to recover back the amount paid ; ' so money paid under a mutual mistake of facts.° Where the owner of goods is compelled to pay a carrier or other person holding them more than is justly his due in order to obtain the goods, the payment is not voluntary and the excess may be recovered back," but this rule is not applicable to real estate ; " or where the owner of a boat pays an illegal sum in order to obtain a clearance of his vessel ; '" so an owner of goods Fleetwood v. City, etc., 3 Sandf. 475 ; senting opinion, 35 How. Prac. 644, 1 Commercial Dank v. City, etc., 43 Barb. Alb. Law Jour. 265. 488 ; Sanford v. Mayor, etc., 20 How. ' Thorp v. Ross, 4 Keyes, 546. 298, 33 Barb. 147, 12 Abb. 28. ' SmitJi v. Marvin, 25 How. 318. 1 Benson v. Monroe, 7 Cush. 125 ; » £„};,, y_ Artizans' Bank, 3 Abb. N. Wyman v. Farnsworth, 8 Barb. 369. S. 209. 2 Wyman v. Farnsworth, 3 Barb. 869. » Banh, etc., v. TIni(m BanTc, 3 N. T. V. Marshall, 37 Barb. 43. 230. The reversal of the case in 22 N. T. i" Harmony v. Bingham, 13 N. T. 99. 200, does not affect this general rule. " Fleetwood v. Mayor, 2 Sandf. 475. '" ' . Mars7iall, 22^. Y. 200. ^^ Royt v. Gelston, 18 Johns. 141; * Mayor, etc., v. Erhen, 10 Bosw. 198. Davis v. Bemis, 3 Am. Law Times St. This judgment was in fact aflEirmed. Ct. Rep. 53, N. Y. Ct. App. The opinion in 38 N. T. 305, is a dis- 468 COMPLAINT IN PAETIC0LAE OASES. [CH. IV A. ■who, under protest, pays one with a lien thereon a charge which was not a lien for keeping the same.' Illegal costs voluntarily paid an attorney, without taxation, may be recovered back ; ° otherwise if taxed.'' If the owner of one of several parcels of lands be charged with the payment of a lien thereon, the payment is not voluntary unless he pay it heforc jvdgment /* he is, after judgment, obliged to pay the entire sum in order to discharge his own lands, and he may maintain an equitable action against the other owners for contribution out of their lands," although they would not be liable to a personal action " unless they had rendered themselves personally liable to pay it.' One who pays a debt for which he is not personally bound, and which is not a charge upon his property, is not entitled to be subrogated to a lien which the creditor had upon the estate of the debtor.' Toter. — An action lies, by one who is legally entitled to vote, against an inspector of election who improperly refuses to receive and deposit his ballots." A statute which requires the voter to take what is commonly called the " iron-clad oath," and that he did not desert from the army is unconstitutional and void." Inspectors have no right to refuse to receive the vote of one who would otherwise be a qualified elector, on the ground that he was guilty of desertion, unless he was tried for and convicted of the offense before an authorized tribunal." So inspectors are liable for refusing to register a legal elector, even though he do not offer to vote," although if they should re-consider and register ' Somen V. Directors, etc., 8 H. of L. Ch. 619 ; Elwood v. Diefendorf, 5 Barb. Cases, 338. 398. 2 Britton v. Frinh, 3 How. 103. ■< Russell v. Piitor, 7 N. T. 173 ; ' Siipermsors v. Brings, 3 Deuio, 36 ; Cherry v. Monro, 3 Barb. Ch. 619 ; Schermerlborn v. Van Voast, 5 How. 458. Marsh v. Pike, 10 Paige, 595 ; Ehcood * mint V. Amidon, 4 Hill, 345, re- v. Diefendorf, 5 Barb. 398. versing, 1 Hill, 147. « Wilkes v. Harper, 1 N. T. 586. 5 Theob. Pr. & Surety, 306, 27 Peun. ' G-reen v. Shumway, 39 N. T. 418, 471 ; 1 Story's Eq. Jur., §;S 477,483^, 36 How. 5. The case contains the form 506, 576 ; 3 id., § 1333 a, 1 Pars, on of a complaint in such case, 1 Hill, on Cont., 5th ed.,d2n; Salsey v. Iieid,d Torts, 3d ed., 87; see niihcr v. RUei/, Paige, 446; Cornell v. Fresr(itt,2'Bsii-h. 53 Penn. St. 113; Ashbi/ r. White, i 16, 10 ; Torreij v. Bank, etc., 9 Pajge, Lord Raym. 938, 1UI5, 1 Salk. 19, 3 id. 649 ; Jmnel v. Jumel, 7 id. 591 ; Van- 17, reversed, 1 Brown's Pari. Cases, 45, derkcmp v. Shelton, 11 id. 3S ; Tillotson 1 Broom's Com. 19(i, note. V. Boyd, 4 Sandf. 516 ; jlArr.v//. v. Plhr. '» Green v, Shumiray, 39 N. Y. 418, 10 Paige, 595; Taiihir v. Porter, 7 30 How. 5 ; see //i/fii'/' v. i?i7i\v. 53 Penn. Masa. 355; see Saici/er v. Lyon, 10 St. 113. Johns 33. ' " (?ofcA('?MV. jl/riCA (■«)», 58 Barb. 152; « JliniU-r V. UiLiit. 1 C. B. (50 Eng. Hidifr v. Rileii, 53 Penn. St. 113. C. L.) 300; Cli-rrni \. Monro 3 Barb. ''•' .BacoH. v. £crtc7iZey, 3 Cash. 100 (see CH. IV A.] COMPLAINT IN PAETIOULAE OASES. 469 him before the election, so that his vote if offered would have been received, they would not be liable.' lu an action against an inspector of elections for refusing a vote it has seemingly been held that malice must be proved as laid ; that if without malice or any improper motive, but in the honest exercise of his judg- ment an inspector refuse the vote of one entitled to vote at an election, no action can be maintained.^ It is not necessary, how- ever, to prove express malice ; it may be inferred from the fact that the decision was contrary to law.' It is suiScient that the act was wrongful.' Whatever is intentionally done is done wil- fully and in legal parlance '• corruptly." The proof of doing the act is evidence of a bad motive.* Where the law requires absolutely a ministerial act to be done by a public officei-, and he neglects and refuses to do such act, he may be compelled to respond in damages to the extent of the injury arising from such nonfeasance or misfeasance. A mistake as to what his duty is, and honest intentions, will not excuse him.' Warranty/ — Ordinarily, on the sale of an article to be deliv- ered in future, there is an implied warranty that it shall be merchantable, and if the article tendered be not merchantable, the vendee may refuse, after a reasonable time for examination, to receive it or offer to return it if he have received it, unless there was an express warranty that the article so delivered shall be of a particular quality, when he may recover without offering to return.' This rule, however, does not apply to a sale of what is known to be refuse, as slops from a distillery.' The vendor may warrant that the article sold is of a particular quality or kind, as Bristol cabbage seed, when, if it is not, he form of complaint), 1 Hill, on Torts, * Upon tlie subject, generally, see 3d ed., 152. Cowen's Tr., Kiugsley's ed.. Wait's ' Bacon, v. BencMey, 2 Cusii. 100. Law & Pr., Pars, on Gouts., Addison = Tozer v. Child, 6 Ell. & Bl. (88 on Cents., Benj. on Sales, Story on Eng. C. L.) 289, 40 Eng. Law and Eq. Sales, 3 Broom's Com. 174^6, vols. 3, 3 89 ; Drew v. Goulton, 1 Bast. 563, note ; and 4 of Conw. Rob. Prac, 1 Steph. Wilson, J., at Nisi prius, Moran v. Com. 504, 2 id. 76, Williams on Pers. iJ«?iraard, 3 Brewster (Penn. Rep.), 601, Prop., 3d Am. ed., SQ9,marg. p., and and cases cited. elaborate note. Smith's Man. Com. Law, ' Drew V. Goulton, 1 East. 565, note, Kent's Com,, Broom's Com. on the Id. 567, note. Com. Law, 848-855, Kerr on Frauds ^ Poople V. Bogart, 3 Abb. 303, 303 ; and Mistakes., 1st Eng ed. People Y. Brooks, 1 Den. 457 ; Reg v. ■" See ante, this chapter, title " Sale " Bolroyd, 2 Mood. & Rob. 339, 341, and cases there cited, and Qmntard v. Maule, J., Nisi prius. Newton, 5 Rob. 73. ' Amp V. Supervisors, 11 Wall. 136. * Holden v. Clancy, 41 How. 1. 470 COMPLAINT IN PARTIOULAlt CASES. [CIT. IV A. is liable in damages for the difference between the value of the cabbage raised from the seed and Bristol cabbage-seed ;' bnt a such warranty must be specific ° and cannot be implied from a knowledge on the part of the seller that the article is intended for a specific purpose when the seller is not a manufac- turer." So one is not liable, in warranty, for selling a glandered horse without any representation as to his health ;' although if guilty of fraud he would be liable for the communication by the horse of the disease to other horses." An agent to sell is presumed to have authority to bind his principal by a warranty," and it has been held in England the principal is liable in such case although, unknown to the buyer, the agent was expressly instructed not to warrant.' A contract by a railroad company to carry goods on a train which ordinarily arrives at a particular time, does not amount to a warranty that it will so arrive, although the company's agent be informed that the object of the sender requires that it shordd so arrive. ° A warranty that a span of ponies are all right for livery purposes cannot, it seems, be construed into a special undertaking that they are not with foal ; nor is pregnancy an unsoundness." One who sells an account impliedly warrants that he has a valid demand for the amount stated in the account ;" and so one who sells a note or other demand, that it is legal and valid," and that the makers are competent to contract in the character in which, by the terms of the paper, they purport to contract," unless the facts are known to both parties." So an agent impliedly war- rants that he has authority from his principal to do what he ' Pamnger v. Thorhurn, 34 N. Y. ' NelsoiiY. Goioing, 6 Hill, 336. 634, 85 Barb. 17; Purk v. Morris ■< Soward y. Sherward.L. B.., 2 G. V. Axe & Tool Go., 'LI How. 18, 60 Barb. 147; see also Ferguson v. Hamilton, 140 ; Milbarn v. Belloni, 39 N. Y. 53 ; 35 Barb. 441. I V. Gomstoah, 33 Conn. 513, cited ^ Lord v. Midland, etc., L. R., 3 C. P. 3 Am. Law Rev. 505 ; see also Mallett 839. V. Mason, L. R., 1 C. P. 559. ' Whitney v. Taylor, 54 Barb. 536. 2 Hoe V. Scmburn, 36 N. Y. 98, 35 "> Sherman v. Johnson, 56 Barb. 59. How. 304. ^^FakeY. Smith, 1 Abb. N. S. 106, 3 Bartlett v. Ho-ppoch, 34 N". Y, 118 ; 116, 118 ; Ddit.,i^,ire Bank v. Jari-i.?, 20 but see Parker v. Morris Axe, etc., 41 N. Y. 326 ; Kdch.iim v. Stcmns, 19 id How. 18, 60 Barb. 140. 499. " TIiYi Y. .Bctf.1, 3 Hml &. Norm. 399 ; " Jirinn v. Downs, 15 N. Y. 575; Mullett V. Mnxon., L. R., 1 C. P. 561-3. Gabot Bank v. Morton, 4 Gray, 156. See ante, title " Trespass," '^ Cnrti.'t v. Broik , 37 Barb. 476 ; but s Mulkti V. M(i..wn, L. R., 1 C. P. see Bi-win cock v. Ulter, 1 Keyes, 427. L. R., 6 Ch. App. 483. CH. IV A.J COMPLAINT IN PARTICULAR CASES. 479 apply where the owner of land sells, without reservation, a portion of the land over which was a race to his mill ;' but he may reserve such a right over lands which he conveys.^ A grant of a mill site, on which there is no mill, conveys no right to flow adjoining lands." An agreement, for a valuable consideration, that one may erect a dam, and back the water of a creek upon the grantor's lands, is binding upon subsequent owners of the grantor's title, although at the time they purchased the old dam had fallen down and no other had been erected in its place ;* but a mere verbal license to erect a dam may be, revoked, although the licensee have expended money on the faith of such license." In trespass, for destroying a dam, the plaintiff may recover for interruption of the use of the mill, provided such special damages be alleged in the complaint." Where one owns lands on both sides of a stream, on one side of which is a fulling-mill and the other a grist-mill,' and he con- veys them to different persons with a prohibition and restriction in the deed against using the waters except for a fulling-mill and a grist-mill, the prohibition is void.' Where the right to use the water in a dam was granted provided the back-water was not raised higher than the apron of the mill above, as it now lays, the grantee cannot use all the water in the dam if it would raise the water higher than such apron." One who purchases land may restrain a former tenant from diverting it from its regular channel, although he was doing so at the time of the purchase." Granting the water of a dam not needed for running a grist-mill reserves a quantity of water sufficient to run the mill as it exists at the grant, and different wheels may be used if they do not require a greater quantity of water to run them.'" But a grant of water for a sj)ecific purpose restricts the grantee to the use of the water for that purpose." If one have used flush-boards for a particular 1 Burr V. Mills, 21 Wend. 390. « White v. Moseley, 8 Pick. 356. = French y. Garhart, 1 N. Y. 96, 113. ' Craig v. Wells, 11 N. T. 315. ^ Golmn V. Burnet, 2 Hill, 630. « Watts v. Kinney, 6 Hill, 83. * Campbell v. McCoy, 31 Penn. St.. ' Corning v. Troy, etc., 34 Barb. 539 363. S. C, 89 id. 311, 40 N. Y. 191. ^ Bahcoch v. Utter, 1 Keyes, 115, ^'' Davis y. Mtmcey, ^8 Ue.^d; Went- overruling Berick v. Kern, 14 Serg. & worth v. Foor, id. 343. Rawle, 367 ; Bahcoeh v. Utter, 1 Keves, " Deshon v. Porter, 88 Me. 289, but 397 ; Cocker v. Gowper, 1 Cromp., Mees. see Wakdey v. Davidson, 26 N. Y. 387. & Rose. 418. See Bankart v. Tennant, L. E., 10 Eq. Cas. 141. 480 COMPLAINT IN PARTICULAR CASES. [CH. IV A. portion of the year for twenty years, he only acquires a right to use them dui-ing that portion of the year.' After one has built and commenced the use of a mill, an owner below him cannot build a dam so as to cause back-water to obstruct such mill. No owner has a right to interfere with the enjoyment of the water by another.' One cannot, by tightening or raising his dam, raise the water therein so as to ilow his neighbor's land to a greater extent than he has acquired by prescription. The question is not upon the height of the dam but the water. ° One who places manure so near his neighbor's well that it filters into it is liable for the injury thus inflicted.* The owner of a mill is not liable for detaining a reasonable quantity of water in his pond, for a reasonable time, although another owner below be thereby injured." The public by twenty years' use acquire a right against the owner's possession to use his premises as a public landing and place of deposit of property for shipping." If one build a dam improperly or negligently, or if in consequence of negligence on his part it is cai-ried away, he is liable for any injury resulting therefrom.' The owner of land cannot in a con- veyance thereof reserve the right to the owners of other lands to draw water from a spring thereon. He may, however, except so much of the water from the operation of his grant.' The owner of land cannot sell the ice formed on a stream through the same,' although the cutting thereof will not be restrained by injunction, as there is an ample remedy at law." A covenant to draw off water six days in a year runs with the land, and is binding upon any person owning it." A water-right can only be granted as an incident to land." Will." — Although a court of equity will not ordinarily try the 1 Mardey v. Shults, 29 N. Y. 346. see also Carhart v. French, 2 N. T. ' Broien v. Boioen, 30 N. Y. 519. Leg. Obs. 307. 3 Stiles V. Hooker, 7 Cow. 260; Wag- " Marshall v. Peters, 13 How. 218; oner v. Jermain, 3 Denio, 306 ; Htjnds see 3 Alb. Law Jour. 386, for an article V. Shults, 39 Barb. 600, 39 N. Y. 346 ; upon property in ice. Colvin V. Burnet, 3 Hill, 630. '» Cummings v. Barrett, 10 Cush. 186. * Woodward v. Ahorn, 35 Maine, 371. " Morse v. Aldrich, 19 Pick, 449. " aimia V. Boston, etc., 13 Gray, 443. '- Stockport, etc., v. Potter, 3 Hurl. « Post V. Pearsnll. 33 Wend. 435. & Colt. 300. ' Pixley V. Glnrk, 33 Barb. 368. The " Upon the subject, generally, see reversal 'of this casi:'. (35 N. Y. 530) Redfield on Wills, Jarman on Wills, extended the doctrine further, so as to Williams on Executors, Willard on make him liable for percolation. EKecutors, Barb. Ch. Prac, Daniell's « hes X. Van Anken, 34 Barb. 566 ; Ch. Prac, Story's Eq. Jur., Bouv. Diet., OH. IV A.J COMPLAINT IN PARTICULAR OASES. 481 validity of a will, yet where the validity of one or its construction comes incidentally in question the same will be determined.' A bill in equity will lie to set aside a will for fraud, undue influence or superstitious terms/ such as that of the influence of a clergy- man over his parishioner." So a suit lies for the construction of a will,* but the complaint must allege that the testator left property, and show what.' So a bill lies to establish and prove a lost will,' to establish a will of real estate as against an heir.' An action to obtain a judicial construction of a will can only be maintained by an executor or administrator with the will annexed,' but if the objection is not taken at the trial it cannot afterward be insisted upon.' So a bill lies to determine who was the legatee intended by the tes- tator where the legatee is not sufiiciently, or is, in some respects, improperly described.'" Witness." — A witness who has been properly subpoenaed is liable to an action, although the cause was not called or a jury " Walrath v. Handy, 24 How. 353. ' Moak's Notes to Clarke's Ch. pp. 133-4, marg. p. 133 ; Sprigge v. Sprigge, L. E.,lProb., & Div. 608. ' Colclough V. Boyse, 6 H. of L. Cas. 1, 3 De Gex, McN. & Qord. 817, Smith's Man. of Eq. 409, Am. ed., 2 Story's Eq. Jur., ^§ 1447- ; Stevens v. Brooks, Clarke's Ch. 130, was not a bill to es- tablish a will as against the heir, but to prove a will generally, and have it recorded as a will of real estate. 8 mbart College v. Fitzhugh, 27 N. Y. 133 ; Post v. EoMT, 33 id. 603 ; Wal- rath V. Handy, 34 How. 353 ; but see Bowers v. Smith, 10 Paige, 193 ; Walrath V. Handy, 24 How. 353; Bowers v. Brower, 9 N. Y. Leg. Obs. 196, Ct. App. 9 Tmker v. Tucker, 5 N. Y. 409 ; Smith V. Kay, 7 H. of L. Cas. 757; Bowers v. Brower, 9 N.Y. Leg. Obs. 196. i» Smith V. Smith, 1 Edw. Ch. 189, 4 Paige, 271, Willard's Eq. 494, eisey., 3 Rop. Leg. 164, id. 1450 ; 3 Williams's Ex'rs, 1035-1041, 1 Jarmau on Wills, 373 ; Brake v. Brake, 8 H. of L. Cas. 173; Matter of Biekifs Will, 11 Hare, 299. " Upon the liability of witnesses, generally, see 1 Chit. PI. 139, 4 Conw. Rob. Pr. 643-8. Bouv. Inst., Broom's Com., Jacob's Law Diet., Kerr on Frauds and Mistake, 1st Am. ed. ; in addition to the citations in the index, see pp. 170, 373-380, 354, 331-333. Smith's Man. of Eq. 1st Am. ed. ; in addition to citations in index, see pp. 17, 356-7. Roper on Leg., Stephen's Com., Kent's Com., Bl. Com., Smith's Real and Pers. Prop., Washb. Real Prop., Willard's Eq., Willard's Real Prop., Adams's Eq., Williams on Pers. Prop., Williams on Real Prop. ' Middleton v. Sherburne, 4 Y. & C. Exch. Eq. 358, 593, explaining Kerriok V. Bransly, 7 Brown's Pari. Cases, 437, and Andrews v. Powys, 2 id. 504 ; Bowers v. Smith, 10 Paige, 193 ; see Allen V. McPherson, 1 Phillips's Ch. 133 ; Harris v. Clark, 7 N. Y. 243. 2 Middleton v. Sherburne, 4 Y. & C. Exch. Eq. 358, 593; Carron, etc., v. Hunter, L.R., 1 Scotch App. 363, Moak's Notes to Clarke's Ch., marg. p. 97. ' Middleton v. Sherburne, 4. Y. & 0. Exch. Eq. 358, 593, Moak's Notes to Clarke's Ch. 97, marg. p. * Hunter v. Hunter, 17 Barb. 35 ; this case contains a precedent for a com- plaint in such cases. Tucker -V. Tucker, 5 N. Y. 408 ; Smith v. Smith, 4 Paige, 271 ; Harris v. Clark, 7 N. Y. 342 ; Spencer v. Spencer, 3 N. Y. Leg. Obs. 163, 11 Paige, 159. 61 482 COMPLAINT IN PAKTICULAK CASES. [CH. IV A. impaneled therein.' In an action against a witness the plaintiff is required to show some damages ;' but, it seems, he need not show he had a valid canse of action." It is suiBcient to show that the defendant was a material witness for the plaintiff, and that his absence caused the plaintiff injury.' It must appear that the failure to try the cause was on account of the absence of the witness.' In an action against a defaulting witness, the plaintiff must show that the witness was duly subpoenaed and paid or ten- dered his fees. It is not sufficient to show that the witness waived service and the payment of his fees." The party must, at his peril, pay his witness his daily fees, including Sundays, in advance, or the witness is not liable for leaving court and not appearing as a witness." A mere failure to object is no waiver.' To entitle a party to recover against a defaulting witness, he must allege and prove : 1. That an action was pending in which the defend- ant might have been a witness. 2. That a subpoena therein was issued, to be served upon him. 3. That it was served by deliver- ing to defendant personally a ticket containing the substance of the writ, showing him at the same time the original, and paying the fees required to be paid by law, to wit, eight cents per mile from the place of residence of the witness to the place of holding the court, and fifty cents for one day's attendance. 4. That fifty cents was paid to the witness for each day's attendance after the first. 5. That he was a material witness. 6. That he was called when the cause was reached on the calendar, and did not appear. Y. The damages sustained by the non-attendance of the witness.' A defaulting witness is not liable to an action if he had a reasonable excuse for not attending;" or if he was subpoenaed so short a time before he was required to appear that he could not, by ' Burrow v, Humphreys, 3 Barn. & " Robinson, v. Trull, 4 Cush. 349. In Aid. 598 5 Eng-. C. L., disapprovinn- New York, it seems, the mtness may Bla,nd v. Swafford, Peake's N. P. 85. expressly waive payment of his fees. See, also, Iliird v. Swan, 4 Denio, 77, 2 so as to give a cause of action for non- Tidd's Pr,, 808-9. attendance. JJurd v. Swan, 4: Den. 75. 2 Goulincj V. Goxe, 6 C. B. (60 Eng. « Museott v. Runge, 27 How. 85 ; C. L.) 703. Vourtne.y v. Baker, 3 Denio, 37 ; Hurd 3 Masterson v. Judson, 8 Bing, 224, v. Siran, 4 Denio, 75. 31 Eng. C. L.; Mul/ett v. Hunt, 1 ■"//«)■(? v. ^jonn, 4 Denio, 75. Cromp. & Mees. 75'3, 767; Davis v. ^ ^fiLicntt v. Runge, 37 How. 86; ioocK, 4 Mees.&Wc'lsb. 678; iV6«(Z/jaTO Gonrtncy v. Baker, 3 Den. 27; Hurd V. Fraser, 1 Man. Or. & Scott, 815, 50 v. Siraii, 4 id. 75. Eng. C. L. ' Heermnns v. Williams, 11 Wend. ^ Hurd V. Swan, 4 Denio, 75. 636. OH. IV A. J COMPLAINT IN PAETICTJLAE CASES. 483 availing himself of the ordinary modes of conveyance, attend without traveling Sunday.' In an action against a witness for failing to produce a paper pursuant to a duces tecum it is sufficient to allege the issuing and proper service thereof, etc., as in other cases, and that the defendant could and might, in obedience to the said writ of subposna, have produced at the trial the paper desig- nated therein, and that he had no lawful or reasonable excuse or impediment to the contrary." The action for the penalty must be brought in the coimty where the subpoena was served ; other- wise for the damages.^ A witness is not liable to an action for falsely giving testimony whereby a party is injured ;' nor for slander uttered as witness ;' nor can he be convicted of murder though by perjury he cause an innocent man to be executed.' Work and Labor.' — On an offer to employ plaintiff as com- mander of a vessel for a trading voyage at the rate of fifty pounds per month, and an acceptance thereof, at a fixed pay of fifty pounds per month, it was held that this was not an entire contract for the whole voyage, but one which gave plaintiff a right of action for the salary as each month arose, and which, when once vested, was not subject to he lost or divested by the plaintiff's desertion or abandon ment of the contract.' Although where the contract is to work a definite time without any agreement to pay until the expiration thereof, it must be performed or no recovery can be had. As where an actor agreed to play for four weeks, but the agreement was modified so that V. Ghadwiclc, 13 Wend. 49. ante, title " Master and Servant ;" ^ Amey v. Long, 9 East. 473, S. C, Parsons on Cont., Cowen's Treatise, Wist pHus,l Camp. 14. Kingsley's ed., Wait's Law and Pr., * Willcie V. Ohadvyidc, 13 Wend. 49. Reeve's Dom. Rel., Addison on Cont., * Gromr v. Bradenburg, 7 Blackf. Smith's Master and Servant, 2 Kent's (Lid.) 234; Dimlop v. 'Glidden, 31 Com. 248-260, Broom's Com., title Maine, 435 ; Smith v. Lewis, 3 Johns. " Master and Servant," Broom's Com. 157 ; Davenport v. Simpson, Cro. Eliz. on Com. Law, same title, Stephen's 520 ; Eyres v. Sedgwick, Cro. Jac. 601 ; Com. , same title, 2 Conw. Rob. Ooxe V. Smith, 1 Lev. 119, was for Pr., title " Servant," id. 411-414, 3 wrongfully procuring plaintiff to be Conw. Rob. Pr., 4 Conw. Rob. Pr., turned out of office by means of a false Smith's Man. Com. Law, title " Master affidavit. It probably is not good and Servant," Schouler's Dom. Rel. authority. * Taylor v. Laird, 1 Hurl. & Norm. ' 4 Conw. Bob. Prac. 897-899, Town- 266, and see the cases cited in note to send on Libel, and Slander, § 224, Add. Johns, ed. ; but see Jtenkins v. Wheeler, on Torts, 3d Eng. ed., 799. 4 Trans. App. 457-462, 3 Keyes, 652- ' Rex V. McDaniels, 1 Leach, 4th ed., 658, and numerous authorities there 44. cited, modifying the judgment below ' Upon the subject, generally, see in 4 Rob. 573. 484 COMPLAINT IN PARTICULAE CASES. [CH. IV A. he was to play two weeks, and after a certain time return and play two more ; but after playing the first two ho refused to return to play the last.' So where one was employed for a year without any stipulation as to when he should be paid for his services or expenses.' Where a servant agrees to work one month, and, if satisfied, six months, he is bound to determine at the end of the month whether he will work the six months, and if he remain and work after the expiration of the first month he elects to work the six, and cannot recover if he leaves the master's employment without justifiable cause.^ If a servant hire for a definite period, with the privilege of leaving if dissatisfied, and quit before the expira- tion of the time without claiming to be dissatisfied, but on the ground that he has other business to attend to, he is not entitled to recover for what he has done.'' Otherwise if there be a hona fide disagreement.' If the agreement be that either party, if dissatisfied, may put an end to the contract, either may do so without informing the other of the grounds of dissatisfaction, and without in fact having any satisfactoi-y reason for such dissatisfaction." A woman who, believing herself to be the wife of a married man who has a for- mer wife living, cannot, on discovering that fact, recover for work and labor done during the existence of the relation of husband and wife.' The party himself, however, would, if living, be liable in an action of fraud for fraudulently procuring the plain- tiff to marry him, if he procured the marriage by fraudulently and afiSrmatively representing that he was legally divorced from his former wife ; ° but such action does not survive against the husband's representatives.' So if the husband, under a claim to be entitled to the wife's property as such, receive money when the marriage is void, that may be recovered back." ' Placide v. Burton, 4 Bosw. 513. ' Cropsey v. Sweeney, 7 ATjb. 139, 27 - Oviatt V. Hughes, 41 Barb. 541. Barb. 310; but see 3 Bisb. Mar. and 3 Peters v. Whitney, 33 Barb. 34. Div., 4th ed., § 696 ; 3 Pars, on Cont., ■> MoneU v. Burns, 4 Den. 131. 5tb ed., 46, note J. ' Gates V. Davenport, 39 Barb. 160 ; « Blossom v. Barrett, 37 N. T. 434. see, also, Hart v. Hart, 33 id. 606 ; » Qrim \. Gairs, etc., 31 Penn. St. Wetterwulgh v. Knickerbocker, etc., 3 533 ; George v. Van Home, 9 Barb. 533. Bosw. 381. '» Hasser v. Wallix, 1 Salk. 28, 11 Mod. « Bossiter v. Cooper, 33 Vt. (8 Wasbb.) 146 ; 3 Greenl. Ev., ij 130. CH. IV A.] COMPLAINT IN PAETICULAR CASES. 485 If wrongfully discliarged, a servant mnj recover the amount contracted to be paid him for his services, if he show he was ready and willing to fulfill his contract.' Telling him he may leave is a sufficient discharge, if the jury find the employer thereby intended the servant to understand his services were no longer desired. ° But the defendant may show, in diminution of damages, that the plaintiti", during the stipulated time, had been engaged in other business from which he had realized or should have realized compensation.' And it is the duty of the servant to use diligence in endeavoring to find work.* A party wrong- fully discharged has three remedies, either of which he may pur- sue at his election. 1. He may, the moment the contract is broken, bring a special action to recover the damages arising from the breach. 2. He may treat the contract as rescinded, and immediately sue on the qtiantum meruit for the work actually performed ; or, 3. He may wait until the determination of the period for which he was hired, and claim as damages the wages agreed to be paid by the contract. But an action upon one theory, and judgment xipon it, will operate as a bar to any further action.' In a contract to do certain specified work, instesfd of to work for a definite period, the rule that the contract price is prima facie the rule of damages does not apply ; ° but one who agrees to carry freight to a particular place may insist upon doing so and receiving the freight agreed upon.' A contract to change the terms of a prior contract of employment after it has been commenced cannot be found from a proposition from one party to do so and a refusal to assent thereto by the other.' Under an agreement to work for one year, payable monthly, the laborer may at any time demand payment for all the months which have T. MoJiaioh, etc., 2 Denio, 337, 4tli ed., note 3 ; see Bagley v. 609; Huntington v. Ogdenshurgh, etc., Smith, 10 N. Y. 489. 33 How. 416 ; see note 7 Am. Law ■■ Emmens v. Elderton, 13 C. B. (77 Reg. N. S. 148 ; Emmens v. Elderton, Eng. C. L.) 507 ; 4 H. of L, Cas. 634, 13 C. B. (77 Eng. C. L.) 495, fl. of L; 645, 646; Ohamberiain v. Morgan, 68 Thom,pson v. Wood, 1 Hilt. 93 ; Becker Peun. St, 168. V. Sassell, 26 How. 528. « Colburn v. WoodwortJi, 31 Barb. 381 ; ' Pelouze V. Stewart, 1 N. T. Leg. Huntington v. Oqdensburgh, etc., 7 Am. Obs. 170. Law Reg. jST. S. 143. 2 Oostigan v. Mohawk, etc., 2 Denio, « Durkee v. Mott, 8 Barb. 433, 425. 609 ; Huntington v. Ogdenshurgh, etc., ' Ellis v. Willard, 9 N. Y. 539 ; AsJi- 33 How. 416 ; note 7 Am. Law. Reg. burner v. Salchen, 7 id. 363, 266. N. S. 148 ; Sedg. on Dam. 213, marg.p. * Alcott v. Boston, etc., 9 Cusb. 17. 486 COMPLAINT IN PARTICULAR CASES. [CH. IV A- elapsed, although he have neglected to demand payment monthly.' And if the employer pay monthly, it is evidence that the agree- ment -wa,s that he should do so.' Under an agreement to do certain vfork or pay a certain sum, plaintiff, in order to recover the money, must show defendant elected to pay money, or that plaintiif demanded the work and defendant refused.' Although an agreement by A to work for E cannot be assigned so as to compel A to work for C, yet one to work for B or bearer may be.* So if A agree to work for B the latter is not obliged to receive the services of another, nor if one contract for the use of a coach from A is he obliged to employ it from 0.' If a surety promise the principal shall pay for work, the workman cannot recover of the surety unless it appear that he knew of the agreement by the surety before the performance of the labor." Where A wrote to B saying he would do certain work for him, and adding " the amount of pay I leave to you," if B refuse to fix a proper amount A may recover what B, acting honafide, should have fixed;' although no action would lie until B had been applied to to fix the amount of compensation and refused ;° but where the agreement was to pay such remuneration as should be deemed right, it was held the employer was the sole judge as to whether or not he would pay any thing." Where it is agreed that a third party shall fix the amount of compensation no action lies until it is fixed by him.'° Under an agreement to do work to the satisfaction of a third person, the plaintiff must aver and prove that it was done to his satisfaction, and, if payment is to be made on the production of his certificate, that such certificate was given and produced." Unless the arbi- ' White V. Atkins, 8 Gush.. 367. " Butler v. Tucker, 34 Wend. 447 ; ' Justison V. Crawford, 35 How. 465. Smith v. Briggs, 3 Den. 73; Smith v. 3 Nelson v. Glough, 3 Cuali. 463. Brady, 17 N. Y. 175, 176 ; Barton v. ■i Haskell v. Blair, 3 Cash. 534. Hermance, 11 Abb. N. S. 378 ; Adams ^ Bdbson v. Drummond, 3 Barn. & v. Mayor, 4 Diier, 395 ; Dustan v. Ad. 303 (33 Eng. C. L.) Mo Andrew, 44 N. Y. 73 ; Stewart v. « Ball V. Newton, 7 Cash. 599. Keteltas, 36 id. 388 ; Lamti v. Lathrop, ' Bryant v. Flight, 5 M. & W. 1 14 ; see, 13 Wend. 95 ; Martin v. Leggett, 4 B. also, Butler v. Tucker, 34 Wend. 447. D. Smith, 355 ; Kerr on Inj. 95, 96, 1st * Owen V. Bowen, 4 Carr. & P. 93 Eng. ed. ; Jones v. The President, etc., (19 Eng. C. L.) L. R., 6 Q. B. 115 ; Williams v. ' Taylor v. Brewer, 1 Maule & Edwards, 3 Simons, 78 ; Rogers v. Selw. 390. Hogan, 58 Me. 306 ; Wyckoff v. Meyers, '° Morgan v. Birnie, 9 Bing. 673 (33 44 N. Y. 143. See Sherman v. Mayor, Eng. C. L.); Barton v. Hermance, 11 1 id. 316 ; 4 Am. Law Times, TJ. S. Ct, Abb. N. S. 378. Rep. 6. OH. IV A.] COMPLAINT IW PAETICULAE CASES. 487 trator decline to act at all ;' or act unreasonably or in bad faith f or the adverse part)' decline to allow him to act ; or if in his employ to procure him to act after request." If the plaintiff procure the arbitrator to refuse to act he cannot recover ;* the plaintiff may recover the amount named by the arbitrator" without further proof of the doing of the work," provided both parties have notice of the time and place at which he intends to act, and an opportunity to be heard.' If it be apparent from the contract that such notice and hearing were not contem- plated, the decision of the arbitrator is final without the same.° Where the person to give the certiiicate is in the employ of one party, that party contracts with the other that such third pei'son will do his duty and act fairly.' "Where a party agrees to do certain work and such extra work as may be ordered by a certain time in default of a certain sum as damages each day, and that the certificate of a third person shall be final, he must complete the work within the time specified, although the extra work ordered rendered it impossible for him to do so. It was his own folly to so contract.'" So a contract may provide that if the con- tractor do not proceed as rapidly as a third person shall deem proper it may be terminated, and such third person shall fix the amount, if any thing, to be paid for what is done, or the employer may complete what is undone at the expense of the employee, who is bound to pay such expense," unless he was delayed from performing by the act or negligence of the other party ;"'' but an arbitrator can only settle such points as are expressly agreed to be referred to him, and his decision upon other points will not be binding ;"' he cannot fix the price of work not embraced within ' Smith V. Brady, n N. Y. 176. » Heron v. Davis, 3 Bosw. 336. ' Thomas v. FYeury, 26 N. Y. 26 ; » Batterhury v. Vyse, 2 Hurl. & Colt. Martin v. Leggett, 4 B. D. Smith, 255 ; 46, note Johns. Am. ed. Batterbitry v. Vyse, 3 Hurl. & Colt. '" Jones v. President, etc., L. E., 6 42 ; Wyckoffy. Myers, 44 N. Y. 145. Queen's Bench, 115. 2 MeMahon v. Erie, etc., 20 N. Y. " Roberts v. Bury, eta., L. E., 5 C. P. 463; Dustan v. Mc Andrew, 10 Bosw. 310; Phelan y. A. & 8. B. R., 1 Lana. 137, 44 N. Y. 72. 258 ; Hennessy v. Farrell, 4 Gush. 267 ; * Stewart v. Gnyler, 17 Barb. 482. Faunce v. Burk, 16 Penn. St. 478, 479 ; 5 Mclntyre v. Morris, 14 Wend. 90. Pauling v. The Mayor, etc., 10 Exch. ^ Adams v. Mayor, 4 Duer, 295; 763 ; hnt see Ratiger v. Great Western, Wyckoffr. Myers 44 N. Y. 143. cfc.,5 House of Lords Cases, 73. ' McMahon v. Mrie, etc., 20 N. Y. " Roberts v. Bury, etc., L. E., 5 C. P. 463 ; OoUins v. Vanderbilt, 8 Bosw. 313, 310, 335. 330 ; but see Dustan v. McAndrew, 10 " Roberts v. Bury, etc., L. E., 5 C. P. id', 130, 44 N. Y. 73. 488 COMPLAINT IN PAETICULAK CASES. [CH. IV A. the contract.' If a contractor with a railway company agree to abide by the decision of an engineer he must do so, although the engineer be at the time a stockholder in the company," or be the party in interest " (although a judge of a court of law could not have sat in such a case '); otherwise if the arbitrator be a party in interest and that fact be unknown to the contractor.' If an architect, whose decision is made final by the terms of a contract, be guilty of unfair conduct a court of equity will relieve the party injured thereby." Where one works for another, under promise that the employer will remember him in his will, he may recover if nothing be left him by will,' but he cannot maintain an action during the life- time of the employer.' If any thing be left him by will he can- not recover, although the legacy be very inadequate compensation for the services." If one work for another, under an agreement that he shall be paid by a devise of land, he can only recover the value of his services, regardless of the value of the land.'" Ordinarily, on the performance of work for one person by another, and his acceptance thereof, tiie law implies a promise to pay therefor." If, however, the relation of parent and child exists between the parties the law precludes the idea of an intention on the part of either to pay or be paid. A child cannot recover for services rendered the father without express proof of a promise by the father to pay therefor, or of an expectation on his part to do so, nor can a father recover for supporting his child without the same proof. There must be a mutual understanding to pay wages on the one hand and to pay for support on the other.'" 310 ; Crowfoot v. London, etc., 2 Cromp. ' Eaton v. Benton, 3 Hill, 576 ; Bdbin^ k Mees. 637. son v. Raynor, 38 N. Y. 496, 497. ■ Hart V. Lanman. 29 Barb. 410. " Erhen v. Lorillard, 19 N. Y. 399. '' Ranger v. Crreat Western, etc., 5 H. " Moore v. Moore, 21 How. 323 ; L. Cases, 73. Hutchinson v. Hutchinson, 3 N. Y. 317, ' Dustan v. McAndrews, 44 N. Y. 73. 318. * Dimes v. Grand, etc., 3 H. L. Cases, " Livingston v. Ackeston, 5 Co^y. 533, 759, 3 McN. & Gord. 385, Moak's Notes 533 ; Sharp v. Cropsey^ 11 Barb, 331^ to Clarke's Ch. 188, ed. 1869. 326, 338 ; Williams v. Hutchinson, 5 id. ' KimAerly v. Dick, 1 Eng. 511, L. R., 133, 125, 3 Comst. 313, 1 Pars, on Cent. 13 Eq. 1. 357, id. 530, 531 ; Maltby v. Harwood, « Pauly Y. Turnhull, 3 Giff. 70 ; 13 Barb. 473 ; Williams v. Finch, 2 id. Ormes v. Beadel, 2 id. 166. 308 ; Robinson v. Gushman, 3 Deu. 149, ' Jacobson v. La Orange, 3 Johns. 199. 150, 155 ; Felter v. Felter, 33 Penn. St. * Patterson v. Patterson, 13 Johns. 50 ; Mosteller's Appeal, 30 id. 473 ; 379 ; Robinson v. Raynor, 38 N. Y. 496, Moore v. Moore, 31 How. 311, 222, 334 ; 497. Conger v. Van Aernum, 43 Barb. 603 • CH. IT A. J COMPLAINT IN PARTICULAR CASES. 489 Where, after tlie death of a father, his executors gives one of his children a note for services, for which no express promise to pay is proven, such note is without consideration and void, and if the executors pay it the amount thereof cannot be allowed them on their settlement of accounts.' Unless the parties intended the one to pay and the other to be paid, no ex post facto charges can be made." So where one boards another from charitable motives without any intention of remuneration, he cannot afterward charge for such maintenance ;° or if he go a journey to go bail for a friend, because he does it as his friend and as an act of kind- ness, and does not undertake the journey as work or labor.* But the keeper of a county poor-house is bound to pay a pauper for labor done for him if he agree to pay him therefor.' The rule is the same where the relation of parent and child is assumed by and exists between parties, as where one adopts a child ;° or takes the child of a relative to live with him, where there is no obliga- tion on the part of the child or its parent to pay for sup])ort and no liability to pay for its labor.' So no promise will be implied between relatives.' The relation of parent and child is established by evidence that the parties lived together and recognized by their acts the existence of such a relation.' If there was an understanding, express or implied, that the child should be paid for services, he may recover,'" unless the same be satisfied by a devise or bequest ; " but where the father, after the son had been in his employ many years, declared to witnesses that he intended to pay his son for his work, such declarations are not evidence of the existence of a contract for wages between the parties, and it is error to permit the jury to infer a contract from such declarations." Brush V. Blanchard, 18 111. 46 ; Seavey ' Bergin v. Wemple, 30 N. Y. 319. V. Sea-oey, 37 N. H. 125 ; Hudson v. Lutz, * Andrua v. Fisher, 17 Vt. 556. 5 Jones (N. C.) 217 ; GilUtt v. Gamp, ' Duffy v. Duffy, 2 Am. L. Beg. (N. 27 Mo. 541 ; Davis v. Ooodenough, 1 S.) 484, Sup. Ct Penn. Wms. (Vt.) 715 ; Lute v. Frey, 19 Penn. 8 Bowen v. Bowen, 2 Bi-adf. 836. 366 ; Sussee v. Boundtree, Busbee, 110 ; ' Dalton v. Bethlehem, 20 N. H. 505. Besor v. Johnson, 1 Carter, 100. "• Martin v. Wright, 13 Wend. 460 ' Dye V. Kerr, 15 Barb. 445 ; Shepard Robinson v. Baynor, 28 N. Y. 496, 497 V. Young, 8 Gray, 152. Conger v. Van Aernam, 43 Barb. 602 '' Williams v. Hutchinson, 5 Barb. Adams v. Adams, 28 Ind. 50. 124, 3 Comst. 317, 318 ; Moore v. Moore, " Bose v. Bose, 7 Barb. 174 ; Faton v. 21 How. 228. Benton, 2 Hill, 576. ' University v. McNiel, 2 Ired. 605. '' Hertzogv. nertzog,2'i Penn. St. 4G5 ; * Season v. Wiedman, 1 Carr & Payne, Bobinson v. Baynor, 86 Barb. 128. The 234 (12 Eng. C. L. Rep.) reversal of this case by the court of 62 490 COMPLAINT IN PARTICULAR CASES. [CH. IV A. Otherwise if, after services are rendered under such declara- tions, tlie employer give the employee a note for a definite sum therefor.' Sickness of the employee, or his death, excuses per- formance, and he or his representative raa.j recover for what was actually done before such sickness or death." And where one contracted that his wife should play the piano at a concert, he is not liable for non-performance if the wife be sick and cannot do so.' So as to any other inability not involving his own fault,' as the freezing of a liver,' or the foundering of a ship on which a sailor engages for a voyage." But where the plaintiff apprenticed his son to a watchmaker and jeweler for six years, paying him a premium of twenty-five pounds, and the master duly instructed the apprentice for a year and then died, it was held, in an action against the master's representative for money had and received to recover the whole or some part of the premium, on the ground of failure of consideration, that such failure being only partial the action was not maintainable.' The recovery in cases of failure to perform in consequence of sickness or other unavoidable accident will be according to the contract price, and not iipon the quantum meruit." It has been held that a master was justified in discharging a servant who, without his consent and contrary to his wishes, left his house to see her mother who was expected to die, although she returned next day ;' but we doubt whether the case would be followed in this country. But where a servant refused to work Sunday., and, in consequence of harsh language from his master, left his employ, it was held he could not recover.'" One tenant appeals (28 N. Y. 494) does not con- ■■ WMncup v. Hughes, Law Rep , 6 flict with the rule that mere loose Com. PI. 78, Exch. Chamber, declarations are not sufficient. There * Clark v. (Gilbert, 26 N. Y. 279. were in this case many and strong ' Turner v. Mason, 14 Mees. & circumstances to show that both Welsh. 112. parties understood the son was to be '" Marsh v. Midesson, 1 Wend, 514. paid for taking care of his mother. This case does not decide that the ' Schofield V. Hernandez, 47 N. Y. master had a right to compel the ser- 313. vant to work Sunday, but, as we under- 2 Wolfe V. Howes, 24 Barb. 174, 666, stand it, that the servant should not 20 N. Y. 197 ; Fahy v. North, 19 Barb, have left but should have worked the 341 ; Clark v. Gilbert, 32 id. 577, 26 N. remainder of his term. If it be the Y. 379. custom that servants shall have Sun- ' Robinson v. Davison L. R., 6 Bxoh. days and holidays to themselves, a 269. servant cannot be discharged for ^ Fahy v. North, 19 Barb. 341. absence on Sunday or a holiday. f VTorth V. Edmonds, 52 Barb. 40. Queen, v Stoke, etc., 5 Ad. & Ell. N. S. « Daniels v. Atlantic, etc., 24 N. Y. 447. (48 Eng. C. L.) 803, 1 Greenl. Ev., § 293. CH. IV A.J COMPLAINT IN PAETICUIjAR CASES. 491 in common cannot oust his co-tenant, and, when sued for the profits of the property owned in common, charge his co-tenant with his services and money expended, whicli were rendered and paid witliout the plaintiff's request or consent and against his will.' So where one without color of right enters upon another's land, and performs work there, he cannot recover therefor, even though the owner promised to pay him for it.' Otherwise, if he entered under color of right, and surrendered improvements he had made under a promise for compensation,' unless the contract were not to be performed within a year, so that it was void by the statute of frauds.* If A lets B into possession of his house under a promise that, if he will make certain improvements thereon, he will lease it to him for twelve years, and after the improvements are made refuse to do so, B cannot recover for work and labor done.^ He should have sought a specific performance in equity." But if A fraudulently, under a representation that he is the owner of lands, induce B to perform work on it in the expectation of becoming a joint owner, on discovery of the fraud he may rescind the contract, and reco^-er the value of his work, although the contract be void by the statute of frauds.' A recovery cannot be had for services voluntarily done for another without his privity or request, as in saving his property from destruction by fire,° although the law will, in the first instance, presume a request, unless the circumstances be such as to rebut such pre- sumption." Where one rendered services as treasurer of a corporation with- out any arrangement for compensation, and there was evidence to show he expected to be compensated, from the incidental advan- tages of his connection as a partner with another officer of the company, it was held a proper question for the jury whether the services were intended to be gratuitous." But where A's logs were carried on B's land, by water, it was held he might recover for the use of his land while he suffered them to remain there, if ' Holmes v. Dams, 21 Barb. 266, 274, « RicJcard v. Stanton, 16 Wend. 27. 275. ' Riahird v. Stanton, 16 Wend. 25. ' Frear v. nardenburgh, 5 Johns. 373. ^ Bartliolomew v. Jackson, 20 Johns. ' Benedict v. Beebe, li Johns. 145. 28 ; Sheldon v. Sherman, 43 Barb. 372. ■* Lower v. Winters, 7 Cow. 363. » Lewis v. Trickey, 30 Barb. 387 ; ' Hopkins v. Richardson, 5 N. T. Leg. Moore v. Moore, 21 How. 333. Obs. 149, 14 Law Jour. Q. B. 80 ; Gillett " Pendleton v. Empire, etc., 19 N. V. Maynard, 5 Johns. 85. Y. 13. 492 COMPLAINT IN PAETICULAE CASES. [OH. IV A. the owner reclaimed them.' It is no defense that the employer agreed to pay a third person, not shown to be entitled to the services, for the labor, unless he prove he have done so.'' The laborer may prove the value of his services by the opinion of witnesses, but cannot ask for such value " under all the circum- stances or beyond board." ^ Where one is working by the month he cannot recover for working extra hours, or even nights, unless his employer agree to pay extra compensation therefor.' Where one performs work for a municipal corporation, the charter of which provides that such services, which are payable by a local portion of the corporation, according to-benefits received, shall be included in an assessment, and that no money chargeable upon the assessment fund shall be paid from the general fund, he cannot maintain an action for his services until an assessment has been collected, or the corporation is in default for not proceeding with due diligence to make and collect one, for the contractor agrees to receive payment specifically from the moneys to be assessed and collected.* Otherwise if a corporation contract to pay for work and labor of general benefit, and for which the entire corporation is to pay, and which it has poioer to collect by assessment, which it unreason- ably neglects to enforce. The action in the latter case may be for work and labor and need not count upon the negligence of the corporation to make and enforce an assessment, although it would perhaps be better so to do.^ Where work is done under a special contract the employer must count upon that, unless there be a full and complete performance." If not, he must plead the contract, the partial performance and the facts entitling him to recover.' If the duties of a salaried ofiicer be increased he is not entitled to additional cotnpensation therefor as a matter of right ; ° nor will one M^ho contracts with another for the doing of an act — as the building of a house — be liable to pay additional compen- sation, as for extra work merely, on proof that he ordered it, that 1 Sheldon v. Shearman, 43 Barb. 368, ' Baldvyin v. City of Oawego, 2 Keyes, 372, 42 N. Y. 484. 135-137. s Lewis V. Trickley, 20 Barb. 387. » Ante, 249, niarg. p. > 37 Penn. St. 367. ' Atkinson v. Collins, 9 Abb. 353, 18 < Hunt V. City of Utica, 18 N. Y. How. 235. 442 ; Baker v. City of TJticit, 19 id. s Wendell v. City of Brooklyn, 29 336. Barb. 304. CH. IVA.J COMPLAINT IN PARTICULAR CASES. 493 it was done and he accepted the work when completed,' unless he be informed or must necessarily, from the nature of the work, be aware that the alteration will increase the exj)ense.^ A servant who is discharged for not faithfully serving his employer — as for selling property to another house of which he is a member — cannot recover for work done previous to such discharge,' for an agent m\ist faithfully serve his principal, and is bound to the exercise of all his skill, ability and industry in favor, of his employer.' But a traveling agent for one house may receive and execute orders voluntarily given and tendered for the purchase of goods from another house.* So a servant for a year, who is discharged for drunkenness, cannot recover for what he has done. " Where one contracts to do the carpenter work on a building, and to proceed forthwith and without delay, the employer is bound to have the building in readiness to commence the work within a reasonable time, and if he fail to do so within a reasonable time the employee may recover his damages by reason of the delay of the employer in having the building ready for him to do the stip- ulated work." So where the employer is to furnish plans or do any other act before the employee is to commence.' He may recover the increased expenses of doing the work, in consequence ' CoUyer v. Collins, 17 Abb. 467. Mm. The pleag should have alleged ° Lomlock V. King, 1 Moody & that plaintiif, by his own default, be- Rob. 60. came intoxicated, whereby lor a certain ^McDonald v. Lord, 36 How. 404; definite time he was rendered incapable Qeiger et al. v. Harris, 19 Mich. 209. of attending to defendant's business, See Wilson v. Brereion, 5 Irish Law for 7ion constat but the intoxication Rep. 466 ; Lawrence v. QulUfer, 38 Me. was in a single instance, and for a 532. brief period of time. As to the liegli- ■* Oeiger et al. v. Harris, 19 Mich, gence, non constat but that it was on 309. a single occasion, and was very slight, * Huntington v. Glaflin, 10 Bosw. inconsiderable and insignificant, not 262, 38 N. T. 183; but see Wilson v. materially or at all prejudicing the Brereton, 5 Irish L. R. 466, that it is defendant. This case turned upon not sufficient to allege that while in demurrers to the defendant's pleas, defendant's employ the servant became according to the rules in force before intoxicated and incapable of properly the Code. It is, however, important to attending to the business of the de- show what the rale of law really is feudant, and for that reason he dis- and what a good answer should con- missed plaintiff; nor that, while in tain. defendant's employ, plaintiff perform- ^ Allamon v. Mayor, etc., 43 Barb, ed the services in the several counts 38 ; Thorp v. Ross, 4 Keyes, 546. in the declaration mentioned in a neg- ' Roberts v. Bury, L. R., 5 C. P. 310, ligent and careless manner, and for 825. that reason the defendant dismissed 494 COMPLAINT IW PARTICULAE CASES. [CH. IV A . of tlie delay, on a quantum ineruit,^ and does not waive the employer's breach of the contract by going on without complaint or objection and completing the work;' nor can the employee himself incur the expense of removing the obstacle to his perform- ance, and charge his employer therewith without an agreement by the employer to pay the same.^J ' Allamon v. Mayor, 43 Barb. 33. ° Thorp v. Boss, 4 Keyes, 546. [*384] * CHAPTER V. OF THE ANSWER. The only pleading on the part of the defendant is either a demurrer or an answer. It must be served within twenty days after the service of a copy of the complaint.' The nature and office of the demurrer under the Code will be considered in a subsequent chapter. The present chapter will be confined to the subject of the answer to the plaintiff's eomplaiut in the following order : 1. Nature and use of the answer. 2. General and specific denial of the plaintiff's allegations. 3. The statement of new matter in the answer. 4. Counter-claim, nature of, and when and how pleaded. 5. The verification of the answer. 6. Sham, irrelevant, and frivolous answers and defenses. 7. The supplemental answer. [*385] * SECTION I. GBNBBAL NATURE AND USE OF AN" ANSWER. The answer to the plaintiff's complaint, which the Code allows, is at once a substitute for the plea to the declaration at law, and for the plea and answer to a bill in equity. In an action at law there were pleas to the jurisdicl/lon,^ pleas in abatement, and pleas in har. These pleas were pleaded in the order in which they are here mentioned, and which was said to be " the natural order of pleading." Where the defendant pleaded in abatement to the disability of the person of the plaintiff to sue, or the defendant to be sued, he waived his plea to the jurisdiction of the court; and where he pleaded in Jar to the action he could not afterward plead in abatement, unless for new matter arising after the commencement of the suit.'' Defenses in abatement were to some defect or error which merely defeated \h.& present proceeding, and did not show that the plaintiff was forever concluded.* A plea in abatement was ' Code, g 143. ' 1 Chit. PI. 440, 441, 3 Cow. 417. ' This plea was seldom or never used "■ 1 Chit. PI. 443. in practice. 496 THE ANSWER. [CH. V. required, not only to poiat out specifically the error or defect, but also to sliow the plaintiflf how such defect might be corrected, and furnish him with materials for avoiding the same [*386] mistake in another suit in regard to the *same cause of action ; or, in technical language, it must give the plamtiff a hetter writ.' A plea in har went to the merits of the case and denied that the plaintiff had any cause of action ; or admitting that he once had, insisted that it had been determined by some subsequent matter.' Such defenses as heretofore were to be set up by plea to the jurisdiction or by plea in abatement are now like the plea in bar, to be taken by answer where the objection does not appear on the face of the complaint.' [The distinction between pleas in abatement and pleas in bar is abolished by the Code. The defendant may unite in the same answer a defense which was formerly a plea in abatement, and one which was a plea in bar.* In such cases it is the duty of the court to require a separate verdict upon each defense.' If the defendant plead in abatement only, and the issue is found for the plaintiff, the defendant is not entitled to plead over, but the court or jury should assess plaintiff's damages, and final judgment should be awarded for him.' A plea in abatement, that A and B were copartners, and should have been co-defendants, is not sustained by evidence that B was such partner. The defendant, by his plea, must give the party a better writ. He must state precisely and truly who were the parties to the contract. If he fail to do this his plea fails.' If the defendant rely upon a compromise of a former action for the same cause, which has neither been discontinued nor pro- ceeded to judgment, he must plead another action pending. Such facts are not available to defeat the second action, merely upon allegations that the former action included the cause of action upon which the present suit was brought ; that it was settled by ' 1 Chit, PI. 446. [Wygand-v.Sichel, hew v. RoUnson, 10 How. Prac. 164; 33 How. 174, 3 Keyes, 130 ; Trmer v. Tlwmpson v. Greenwood, 38 Ind. 337 ; etc., % id. 497; Kingsland y. SuUwanv. Frazee. i'Rdb. Q\&. Braested. 2 Lans. 17.] ' Gardner v. Clark, 31 N". Y. 399. » Id. 469. « Thompson v. Greenwood, 28 Ind. 337. 3 Code, § 147. ' Wygand v. Sichel, 33 How. 174, 3 * Sweet V. Tuttle, 14 N. T. 465 ; May- Keyes, 130. SEC. I.J NATUEE AND USE OF. 497 compromise and the amount paid.' The mere pendency of a former suit by a third person, at the time of the commencement of the second action, is no defense if such third person did not in fact then own tlie cause of action. ° An action can only be discon- tinued by entering an order to that eiFect with the clerk and serving a copy or notice thereof;' and the discontinuance must be before answer to defeat a plea of former suit pending." There was no question, before the Code, that if defendant had appea/red the plaintiff, in order to perfect a discontinuance, was required to pay the defendant's costs.° It has been held since the Code that if defendant have employed an attorney he is entitled to costs although no notice of appearance be given ; ° and as the Code gives the costs to the party, ^ instead of the attorney, as under the old practice, we can see no reason why the defendant is not entitled to costs as soon as the action is commenced although he never employ an attorney. The pen- dency of an action against the defendant individually upon one contract is no defense to an action against him on another of a similar character made at the same time as executor, although he be personally liable upon the latter.' The mere pendency of an action upon contract, for goods sold and delivered without judg- ment, is no defense to an action in tort for the conversion of the same goods ; " otherwise if the first action have proceeded to ' O'Beirne v. Lloyd, 6 Abb. N. S. 387. can a plaintiff render a valid plea in- Althougb. a general term decision of valid by his own act, and himself do the superior court of the city of New an act which will subject his adversary York, the editor respectfully submits to costs of an unsuccessful defense this case is not good law. If the facts properly interposed ? are pleaded, as required by the Code ' Smith v. White, 7 Hill, 520 ; Averill (§ 149), and those facts, if established, v. Patterson, 10 N". T. 500; constitute a defense, why is not the Powell, 13 Barb. 183 ; and see Buffalo, answer good? Again, if a suit has etc., t. Johnson, 'iS,'S. T. 215. been compromised, how can it be said * Weigen v. Held, 3 Abb. 462. to be pending ? The failure to enter ' Code, § 303. a formal discontinuance on the record * Erie, etc., v. Patrich, 2 Keyes, 256. will not of itself keep a suit pending. The conclusion of the report of this '' Satters' Bank v. Phillips, 38 N. T. case erroneously states that the judg- 128. ment was "affirmed," whereas it was ' Averill V. Patterson, 10 N. Y. 500, in fact " reversed." The word 10 How. 85 ; Bishop v. Bishop, 7 Rob. " counteracted," line 10, page 259, 194. See Buffalo, etc., v. Johnson, 42 should read "consolidated." Keyes' N. Y. 215. Reports are full of errors, and his * Bedell v. Powell, 13 Barb. 183 ; report of a case should be carefully Swart V. Borst, 17 How. 09 ; but see scrutinized by the practitioner before Glark v. Clark, 7 Rob. 276. The latter being cited, case is probably not good law. How ' Wright v. Ritterman, i Rob. 704. 63 498 THE ANSWER. [CH. V, judgment, for in such case the cause of action is merged in the judgment, and the plaintiff has conclusively elected to pursue one of two remedies.' A plea of a former suit in a State court is not a good plea in abatement to a suit in the federal courts in another district ; ' so a suit in the courts of one State is no bar to a suit in those of another, as the courts of one State cannot enforce its orders and judgments beyond its own territory, and the plain- tiff's reraedy may, for this cause, be incomplete. The defendant may have property which ought to be apjjlied to the payment of the same demand in both jurisdictions ; or his property may be in one jurisdiction and his person in another,' although the courts of one State will sometimes interfere by injunction to restrain a party within its jurisdiction from prosecuting a suit in the courts of another State.*] The nonjoinder of a dormant partner as a defendant is not a good plea in abatement, where the plaintiff had no notice he was a partner;' and, it seems, one joint owner of a demand, if they be not partners, may maintain an action for his share of the demand." If one part7ier be not joined the defendant cannot, if he have not pleaded the nonjoinder in abatement, upon the trial, even insist upon apportioning the damages. The plaintiff is entitled to recover the entire damages.' Otherwise as to tenants in common.'' In- fancy is a personal privilege, and the contract of an infant being voidable, and not void, a plea of the nonjoinder of an infant copartner is good, because his copartner has no right to insist upon his infancy.' The only way of taking advantage of a mere mis- ' Lowell V. Lane, 33 Barb. 292, and ^ GooTcingham, v. Lasher, 38 Barb, cases cited arguendo p. 397. 65fi, 3 Keyes, 45-i; Leslie v. Wiley, 47 ^ White V. Whitman, 1 Curtis, 494 ; N". Y. 648. Wadleighv.Veazie,Z^-aum.lii'). See 3 " ^Mcre v. i?TO!cre,51 Barb. 93-4. This Pars, on Cont., 5th ed., 726, note h, that question is fully treated by Mi-. Parsons where the courts have equal power (1 Pars, on Gout., 5tli ed., pp. 11-38). to do complete justice between the See, also, Moak's notes to Clarke's Ch., parties, and that as the State and 123-4, where the question whether the federal courts in the same district have other joint owner should not be made concurrent jurisdiction, the pendency a party defendant, if he refuse to join of a suit in one is a bar to a suit in the as plaintiff, is discussed and the author- other. This we consider the better ities cited. See, also, Jlr. Perkins's note doctrine. to Kodick v. Gfnndel, 1 De Gex, Mc- " Smith V. Atlantic, etc., 33 N. H. 24; Nau^-hton and Gordon, 768, Am. ed. Boione v. Joy, 9 Johns. 331 ; Walsh v. ' Abbe v. Clark, 31 Barb. 338, 240. Durkin, 12 id. 92; Lyman V. Brown, ' S locum v. Hooker, 13 Barb. 536, 3 Curtis, 559 ; Willin-iii.': v. Ayranlt, 31 reversing 13 id. .503 ; Shepard v. Barb. 364 ; see post, 680, marg. p. Oreaocs, 1 N. Y. Leg. Obs. 381, Gen. T., ■* Vail V. Knnpp, 49 Barb. 300. Superior Court of city of New York. SEC. I.] KATUEE AND USE OF. 499 nomer — the bringing of an action by a married woman in her maiden name — is by plea in abatement.' A. plea of nonjoinder must show the party omitted is living ;° but an answer which alleges that he resides at a particular place is a suiScient allega- tion that he is still living." If, however, the complaint show that certain persons are necessary parties, the defendant may demur on account of their nonjoinder, although the complaint do not allege that they are living."] Allusion has been made on a former page to the use of the plea in equity. ° It has been a subject of dispute whether there was in equity any thing which might properly be called a plea in abatement. But it seems to be settled on the highest authority, that whether or not pleas in abatement in their strict sense were known in equity, pleas in the nature of pleas in abatement were not only known but of frequent use. Of this nature were all declinatory pleas, corresponding with common-law pleas to the jurisdiction ; and all dilatory pleas, corresponding with pleas to the person. And the rule governing these, as to the order of pleading, was the same as at common law. All declinatory and dilatory pleas in equity, says Judge Stoet, are properly pleas, if not in abatement, at least in the nature of pleas in abatement ; [*390] *and, therefore, in general, the objections founded thereon must be taken ante litem contestatam by plea, and are not available by way of answer or at the hearing. ° The same principle is to be traced in the civil law, from which our equity system probably derived it, and from which the rules governing our system of admiralty pleadings are derived. Exceptions in the civil law, corresponding to pleas in equity, were of two kinds, aut perpetucB et per emptor im, aut temporales et dilatorice — peremp- tory exceptions or dilatory exceptions. The former were a perpetual bar, the latter temporary in their nature and operation, and always put in before the suit was put in contestation.' The rule, as we have seen, is fully recognized in equity cases. It is recognized in the federal courts of the United States, as in ^Traverv.EigMhAve.B.B.,&KWo. * Burgess v. Abbott, 6 Hill, 476; N. S. 46, 3 Keyes, 497 ; Eagleston v. Son, Eaton v. Balcom, 33 How. 81. 5 Rob. 640. ' Ante, page 34. « Burgess v. Abbott, 1 Hill, 476, 6 « Story's Eq. PI., § 708. id. 135. ' Story's Eq. PI., § 707. « Taylor v. Bichards, 9 Bosw. 679. 600 THE ANSWEE. [CH. V. De Wolf V. Mebaurl et al.^ where it is decided, on full considera- tion, that the question of the citizenship of a party is matter which must be brought forward by plea in abatement in the earlier stages of the case, and constitutes no part of the issue on the merits. It is recognized also in the admiralty practice, as in the case cited in Oardner v. Glarh^ wherein it was held by Judge Stoet that an objection founded upon the pendency of another suit, if taken at all, should be taken by a " special plea in the nature of a plea in abatement, known in the ecclesiastical and admiralty courts by the appellation of a dilatory or declina- [*391] tory exception, which is always *brought forward before the contestatio litis, or general defense in bar, or general answer upon the merits." The principle, therefore, seems to run through every system of pleading known to our courts, and to be founded substantially upon the nature of both legal and equitable remedies, and not upon mere artificial distinctions or peculiarities in the mode of practice adopted by the different systems ; and this certainly is a strong argument in support of the position that the Code has not changed this practice. The analogy between the rules of civil-law pleading as applied in our courts of admi- ralty,'' and the general propositions regulating the pleadings in civil actions by the Code, furnishes another argument in support of the same position. Defen.ses on the merits. — At common law an answer on the merits was made by what was called a ^jfea in bar. It either denied that the plaintiff had any cause ot action ; or, admitting that he once had, insisted that it had been determined by some subsequent matter.' The dilatory plea tended merely to divert, suspend, or abate the proceedings ; but the plea in bar impugned the right of action altogether, and was a substantial and conclusive answer to the plaintiff's claim. It was of two kinds, namely, a plea by way of traverse, that is, a denial of all, or some essential part of the averments of fact in the declaration ; and a plea by way of confession and avoidance, which admitted the declaration to be true, but alleged new facts to obviate or repel its [*392] legal *effect.' The plea in bar dealt solely with facts. ' 1 Peters, 476. ■• 1 Chit. PI. 446. ^- 2 Sumn. 592, ' Steph. PI. 51. ' See ante, pp. 836 et seq. SEC. I.J NATURE AND USE OF. 501 It was never used, like the answer in chancery, which will be presently noticed as an examination of the plaintiff'. It was re- quired to be framed with the strictest and most logical pre- cision of language, in order to reach the great end and object of all common-law pleading, namely, the formation of "a single, certain and material issue." An answer in chancery, on the other hand, which was the most common mode of defense to a bill, performed a double office. This fact it will be necessary to keep constantly in view in order to attain a correct idea of the system adopted by the Code. In the first place, the answer was used for the purpose of setting up the defense of the defendant upon the merits to the case made by the bill ; and secondly, it called out an examination of the defendant on oath as to the facts charged in the bill of which a discovery was sought, and to which interrogatories were usually addressed.' The examination was merely evidence in the cause, and was altogether independent of the matter in defense." It was the right of the plaintiff, as we have seen, to require a full discovery from the defendant of matters charged in the bill that were neces- sary or proper to ascertain facts material to the merits of his case. In other words, to use the bill of complaint, as the instru- ment of an examination of the defendant.' Hence the [*393] general rule in equity, subject to some exceptions, *that if the defendant answer at all he must answer fully, and that he cannot by answering excuse himself from making a full discovery.* This rule of course can have no application under the Code. For, as we have seen,' the discovery is abolished by the Code, and a complaint cannot be used as an examination of the defendant. It follows, therefore, that the second office of the answer in chancery, above mentioned, has no place under our present system. It is curious in this connection to observe, in this departure from the equity pleadings sanctioned by the Code, another close analogy to the rules of the civil law. Bj^ that law, though inter- rogations were allowed, and an examination of the defendant permitted, yet this was never combined with the original libel 1 Story's Eq. PL, § 850. s Ante, pp. 37, 38, 70-74. = Story's Eq. PI., 5^ 673 ; Wigram on * Story's Eq. PI., § 846. Discovery, 10-13. ' Ante, p. 73. 502 THE ANSWER. [CH. V. setting forth the cause of action. When the plaintiff, or aotor, had put in his positions, or narrative of his case, the defendant, or reus, put in his contestations or denials (which were called excep- tions) either dilatoricB, in the nature of an ansv/er in abatement, or perenvptoricB, in the nature of an answer in bar or on the merits. The plaintiff then had liberty upon the issue thus formed to frame his interrogatories, which were called articuli, to be exhibited to the defendant, and he was called upon to answer, in order to supersede the necessity of other proof.' The defendant's answer to the libellus artioulatus, or interrogation of the [*394:] plaintiff, was a ^distinct thing from his exceptions or contestations of the plaintiff's claim. The former is analogous to the defendant's answer in chancery, on oath to the charging and interrogating part of the bill, which we have seen has no place in the system of the Code ; the latter is similar, both to the defense interposed by the defendant in equity to the stating part of the bill,'' either by plea or by answer, and to the plea in bar on the merits in a common-law action." The answer therefore, in all these various modes of pleading, was made to perform substantially the same office. Nor, keeping in mind the distinction that so much of the equity answer as was responsive to such part of the bill as the plaintiff designed solely for the purposes of an examination* is done away with, is there so much difficulty as might at first sight be supposed in the establishment of an uniform system and set of rules to govern all answers whether to legal or equitable causes of action. The answer in equity, stripped of every thing which was required to be inserted as responsive to the interrogatories of the bill, or the examination of the defendant, differed little, if any, from the ordinary chancery plea ; and the latter was closely similar to, and in many respects governed by precisely the same rules as a common- law special plea, or plea in bar. Thus the defense proper for a plea in equity is such as reduces the cause, or some part [*395] of it, to a single * point, and thence creates a bar or other ' Story's Eq. PI., §§ 14, 39, and notes, after the civilians, exeeptio peremp- ' See ante, pp. 37, 38. toria. ' Tlie same name even is applied to ^ See remarks on this subject, ante, them by the older writers. A common- pp. 71, 75. law plea in bar is called by Bracton, SEC. I.J NATURE AND USE OF. 503 obstruction to the suit or to the point to which the plea apphes.' Like the common-law plea in bar it must be material; and whether affirmative or negative, it must be either an allega- tion or a denial of some leading fact, or of matters which, taken collectively, make out some general fact which is a complete defense." It must also be single, and not mix up in the same plea, several defenses to the same cause of action ; though this did not prevent it from setting forth a great variety of circumstances tending to a single point.' It must also be certain ; it must tender issuable matter, the truth or falsehood of which may be replied to or put in issue; and that not in the form of general propositions, but specifically and distinctly.* The equity plea too, like the common -law plea in bar, was either by way of traverse and denial, or of confession and avoidance. The plea by way of traverse relied altogether upon matters stated in the record, and upon denials and negations of matters of fact contained therein, which denials and negations, if true, constituted a suffi- cient defense.'^ Tlie plea in confession and avoidance was [*396] * of matters dehors the bill — new matter — -such as a release, a settled account, the statute of limitations, etc., which, admitting the case made by the bill, seeks to avoid its effect by alleging circumstances in bar of the relief sought. In like manner, the answer of the defendant in equity on the merits, and not by way of discovery" served an entirely similar purpose. ' Mitf. Eq. PI. 295, 396, 297, Cooper's to the plaintiff, of wliicli the defendant Eq. PI. 223. was not at liberty to debar him. Hence ^ Ibid., 3 Dan. Ch. Pr. 103, 104, 7 the necessity, in some cases, of requir- Johus. Ch. 214. ing an answer by way of discovery to 'Ibid., 4 Paige, 178, Story's Eq. PI., accompany a plea; as for example, §§ 653, 654. where the plaintiff admits by his bill •* It was formerly a question whether the existence of a legal bar to his a purely negative plea was a legitimate claim, bat charged some equitable mode of defense in courts of equity, circumstances to avoid its effect. The but the doubt has been dissipated, and defendant might insist, by way of plea, it is now firmly established that such upon the legal bar, denying the circum- plea is good. Thus in opposition to stances which would avoid it ; but the claims of a complainant as lieir at inasmuch as the plea proper was not law, the defendant may plead that he used for the purposes of an examina- is not heir at law; and a plea that tion, he must accompany it with an defendant was not a partner has been answer in support of his plea, making held good to a bill seeking an account a discovery as to all the circumstances of partnership transactions. See charged in the bill. These distinc- Story's Eq. PI., § 668, and cases there tions, it will be readily seen, can have cited. no place in our new system. See this = Ibid., 1 Barb. Ch. Pr. 117. subject considered. Story's Eq. PI., § ' The discovery in equity, as has 673, et seq. been observed, was a matter of right 504 THE ANSWER. [CH. V. It was n&ed, first, as answering the complainant's case as made by his bill ; and secondly, for the purpose of stating to the court the nature of the defense upon which the defendant meant to rely. Or, in other words, the answer on the merits purely, of an ordinary chancery bill, was used for the purpose of controverting the case stated by the complainant, either by confession and avoidance, or by traverse and denial of the several parts of the bill ; or, admit- ting the case made by it, submit to the judgment of the court upon the bill, or upon a new case made by the answer, or both.' Having traced these analogies common to the different systems of pleading, a careful consideration of which may be of [*39Y] much service in arriving at a correct *understanding of the subject, let us in the next place see how far they may be followed, and in what manner applied to the pleadings of the Code. The general idea apparent in the simple and concise for- mula laid down by the Code for the government of the defendant in stating his defense, is precisely the same with that which per- vades and lies at the foundation of the different forms of pleading we have considered, and is to be found equally in the exception of the civil law, the plea in har of the common law, and the plea or the pure answer on the merits in equity. This idea is that the answer is to be used, first, for the purpose of denial or taking issue upon the case as presented by the plaintiff; and second, of stating to the court and apprising the plaintiff of the nature of any substantive matter of defense which the defendant may have to the action, not appearing on the face of the complaint. Another pervading idea of the answer of the Code, to be presently noticed more fully (and which is also common to both common-law and equity pleadings) is the narrowing down the issues to be tried, by the admission on the record of such facts as the defendant by his answer does not deny. The answer of the Code is required to contain : 1st. A general or specific denial of each material allegation of the complaint controverted by the defendant, or of any knowledge or information thereof sufficient to form a belief. 2d. A statement of any new matter constituting a defense or counter claim, 'in ordinary and concise language without repetition.* [*398] * In the first place the defendant is called upon to deny ' 1 Barb. Ch. Pr. 130. » Code, 8 149. SEC. I.] NATURE AND USE OF. 505 generally or specifically eacli material allegation wliich he in- tends to controvert. The option is left him to controvert which of them and as many of them as he pleases. We have seen that the equity practice, that when he submits to answer he must answer fully, that is, answer the whole of the statements and charges contained in the complaint, has no place in the Cole answer ; and the reason of it was also stated, namely, because the discovery in pleadings is abolished.' The effect of not answering and denying any material allegation in the complaint is precisely the same as though it were admitted to be true [and defendant cannot, on the trial, controvert an allegation admitted by not being denied. ^ If a defendant wish to avail himself of the statute of frauds, he must deny the allegation in the com- plaint that an agreement was made or plead the statute.^ If a plain- tiff, by his complaint, admit payment of a certain sum, he cannot deny it. The amount admitted to be paid is the amox^nt which plaintiff' claims was the original demand, less the amount claimed to be due.'] The defendant may, however, without prejudice to his case, omit to answer matters not weU pleaded, as matter immaterial to the issue, inferences of law, etc., and such also was the rule in equity.' The first object of the answer in chancery, as of the answer under the Code, was to put in issue, or controvert the facts stated by the plaintiff in his bill of complaint. The second object was to state facts dehors the bill in avoidance of the case made therein, and upon which the defendant intended to rely in his defense ; or in the language of the Code, " new matter constituting a defense or counter-claim." " A complainant had always a right to be apprised of the nature of the defense which the defendant intended to set up. [*399] The defendant was therefore * bound to apprise him of the case or " new matter," on which he relied in his defense, in a clear and iinambiguous manner — and he could not avail himself of any matter of defense not stated in his answer.' In actions at law it was not necessary in all cases to set up I Ante, pp. 393, 393. = Spear v. Hart, 3 Hob. 430. = Paige v. Willett, 38 N. T. 38 ; Tell " White v. Smith, 46 N. Y. 418. V. Beyor, id. 161 ; Robert v. Good, ' 1 Barb. Ch. Pr. 133. 36 id. 408 ; Lawrence v. Bank, etc., « Code, § 149. 8 Rob. 143 ; Spea/r v. Hart, 3 Rob. 430. ' 1 Barb". Ch. Pr. 137. 6i 606 THE ANSWER. [CH. V. affirmatively special matter, or to apprise the plaintiff specifically of tlie precise nature of the defense. The plea of the general issue denied the whole of the facts alleged in the declaration. A special plea was necessary in setting up new matter not apparent upon the face of the decla/ration} But under the general issue, in an action of assumpsit or debt on simple contract, not under seal, the defendant was at liberty to give almost every matter in evidence, on the ground as was said, that as the action was founded on contract, and the injury was the nonperformance of it, evidence which disaffirms the continuing obligation of the contract at the time when the action was commenced, goes to the gist of the action.'' Thus, infancy, lunacy, duress, want or ille- gality of consideration, etc., might in such actions be given in evidence under the general issue ; also, such defenses as admitted that there was a sufficient contract made, but that before action brought it was discharged, released, or performed ; also those, which admitted that there was once a cause of action, but avoided it by subsequent matter, as accord and satisfaction — the plaintiff, an insolvent debtor, etc. But a special plea, or notice with the general issue, was necessary in setting up the defense of [*400] alien enemy, * tender, former recovery, or judgment for plaintiff or defendant on the same matter,' set-off, and the statute of limitations.' In actions of covenant and debt, on contracts under seal, the rule was more strict, and many of the defenses above mentioned were required to be specially pleaded. There can be very little doubt that it was the intention of the Code to abolish the practice of permitting special defenses to be set up under a general denial, as for example, accord and satisfac- tion, or a release, or other matter going to show a discharge of the contract. It was manifestly the intention of the commissioners to adopt the equity rule, and to require the defendant to state the specific grounds of his defense or discharge. They propose, they say, " that the plaintiff shall state his case according to the facts ; and that the defendant, hy his answer, point out his defense * ' 1 Chit. PI. 472. assumpsit, former recovery was lield ' 12 Johns. 455. admissible under the general issue. 6 3 1 Chit. PI. 293, 3 Cow. Treat. 690, Hill, 114. G92. But in an action of trover or SEC. I.J NATURE AND USE OF. .507 distinctly." ' Accordingly, the provision of the Code is, that the answer must contain, in addition to a denial of each material allegation controverted by the defendant, " a statement of any new matter constituting a defense or counter-claim" etc. " The question as to what matters may properly be given in avoidance under a traverse, or mere denial of the complaint, it must be confessed is not entirely settled since the Code. [*401] The question will be more * fully considered, and the cases analyzed in a subsequent section of this chapter, and it will be sufficient here, in considering the nature and use of the answer, to glance at it in a general way. It has been thought that, though it is a general rule, under the Code, that special matters of defense dehors the complaint, must be set up in the answer, in order to allow them to be proved on the trial, yet there are certain matters of defense which need not be so set up, bat may be introduced under a mere denial ; as, for example, matters which go to the essence of the cause of action or contract, showing that no sufficient contract was in fact ever made, or no cause of action ever existed ; and generally all such matters as go to disprove any material allegation in the com- plaint. Thus, an absolute want of consideration or illegality of consideration, need not in general be alleged affirmatively in the answer, except in those cases where the consideration being implied in law none need be alleged in the complaint. In all other cases as we have seen on a former page,' a complaint to be good must show on its face a sufficient consideration, which must be proved. A general denial of the complaint, or a specific denial of the fact of consideration, is sufficient to put the plaintiff" upon his proof, and to allow the defendant to rebut such proof by showing want or illegality of consideration." [*4:02] * So also as in the recent case of Reynolds v. Dimhirh (& State Line Ji. JR. Go.,'' where a complaint on an agree- ment for the sale and purchase of land is met by a denial in the ' Report of Com. p. 141. gality of consideration sliould properly '' Code, § 149. be set up in tlie answer, if the defend- ^ Ante, pp. 216-221. ant intends to rely on it in his defense. '' Where the law implies a considera- On a sealed instrument, this is required tion, and it is neither necessary in the to be done by statute. 2 R. ti. 406, i^§ first instance to aver nor prove one, as 77, 78, 3 Edm. St. 423. on a promissory note, the want or ille- ^ 17 Barb. 614. 508 THE ANSWER. [CH. V. answer, the plaintiff is put to his proof and must prove a valid agreement in writing aud the defendant under sucli denial may rebut such proof. Upon similar principles in an action for wrong, as where negli gence or carelessness is the gist of the action, this is necessary to be set out in the complaint, and a general denial of the negligence or carelessness will be sufficient to let in the defendant's proof, without setting up the specific facts which go to rebut the negli- gence, as unavoidable accident, where that may be a defense, the act of God, or the public enemies, etc. And in an action for damages for trespass, the defendant under a mere denial may show that the article injured or destroyed was worthless, without alleging that fact in his answer.' The common-law rule was that in an action on simple contract all matters might be given in evidence under the general issue, which go to show that no sufficient contract was ever made. Thus the defendant, as has been already observed, under this general foroa of denial or traverse, might show that the contract was not valid in its inception by reason of infancy, lunacy, cover- ture, and the like ; but the general issue would not admit such a defense as tender, former recovery, statute of limitations, [*4:03] etc., * arising subsequent to the contract, but by implica- tion admitting a valid original contract.'' The better opinion now seems to be that such distinctions are no longer recognized by the Code.'' The use of the general traverse, or general or specific denial of the Code, is more limited than at com- mon law, and is similar to its use in equity, namely, to put in issue only the fact or facts so denied. The use of the special answer of new matter is to set forth every material issuable fact upon which the defendant wishes to rely, other than those generally or specifi- cally denied in the answer. And I conceive the rule is truly expressed by Justice Selden in Benedict v. Seymour " that " a general traverse, under the Code, authorizes the introduction of no evidence on the part of a defendant, except stock as tends directly to disprove some fact alleged in the complaint^ In ' Durdop V. Snyder, 17 Barb. 561. ' See post, section III of this chapter. ' Though in many other cases these [ Wheeler v. Billings, 38 N. Y. 363.] defenses might be proved under the ^ 6 How. Pr. 398. general issue, as release, performance, accord and satisfaction, etc. SEC. I.] NATUliE AND UaE OF. 509 the same case a more strict rule was intimated in regard to setting up a special defense than has been since thought consistent with the liberality of pleading allowed by the Code; namely, that every special defense which consists of matter merely going to disprove any material allegation in the complaint is defective, and must be stricken out on motion. Such defense must be introduced under the general or specific denial. This question, however, will be considered more fully in the two following sections of this chapter.' [*404:] *I close these remarks on the general nature and use of the answer with the following brief extract from the same opinion, which expresses substantially the views here adopted, and states very concisely and clearly M'hat, it is believed, is the true intent of the Code in its provisions on this subject : " Defenses are divisible into two classes : 1. Those which deny some material allegation on the part of the plaintiff. 2. Those which confess and avoid those allegations. " There can be no good defense which does not belong to the one or the other of these classes. The Code, following the order of nature, has provided for both classes in section 149. By the common law these two kinds of defenses had become more or less entangled and confused ; the Code keeps them distinct. I have already remarked that no defense which does not convert any material allegation of the complaint can be given in evidence under a general or special traverse. Every such defense, there- fore, must be pleaded specially." The learned justice, in a previous part of this opinion, observes that his remarks are not intended to have any bearing upon an action which is equitable in its nature. It is submitted, however, that the above observations, and the conclusions arrived at, are equally applicable to every class of action, whether equitable or legal. ' See section III, entitled WJiat matter may be pleaded. 510 TilE ANSWER. [CH. V. [*405] * SECTION II. GENERAL AND SPECIFIC DENIAL. The Code provides that the answer must contain : " 1st. A general or specific denial of each material allegation of the complaint controverted by the defendant, or of any knowledge or information thereof sufficient to form a belief." ' We shall examine in this section these two different kinds of denial allowed by the Code, in their order, and first : G-eneral denial. — The nature and uses of the general denial under the Code have been considerably discussed in some of the more recent cases. It had been supposed at one time to be equiv- alent to the general issue, and that many of the rules applicable to that plea were also applicable to it. But this view has not been sustained, and it may now be regarded as settled [*406] that there is no such thing as the common * law general issue under the Code," although it is said that the general denial authorized by the Code is, in most respects, like it.° But the points of diff^erence have been very clearly and distinctly stated, and consist mainly in this, that the general issue admitted a great variety of defenses wliich cannot now be introduced under a simple general denial, or unless specially pleaded. It is said by Justice Haeeis, in Livingston v. Finhle^ that " under the general issue the defendant, after the plaintiff' had made a prima facia case against him, might proceed to prove almost any thing tending to show that, when the action was brought, the plaintiff had no subsisting cause of action. This he would not be allowed to do upon the general denial under the ■ The original Code was as follows : " A specific denial of each material al- " 1st. In respect to each alleg-ation legation of the complaint controverted of the complaint controverted by the by the defendant according to his defendant, a specific denial thereof, or knowledge, information or belief, or of of any knowledge thereof sufficient to any knowledge or information thereof form a belief." sufficient to form a belief." The amendment of 1849 inserted the ^ Fay v . Gh-imsteed, 10 Barb. 321 ; words " general or," so as to read " a Houghton v. Townsend, 8 How. Pr. general or specific denial." The amend- 441 ; Stoddard v. Onondaga Conference. ment of 1851 left out the words " gen- 13 Barb. 576 ; GatUn v. Ounter, 1 Duer. eral or," and the amendmen' of 1853 353. restored them again, as the section ' Limngston v. Mnkle, 8 How. Pr now stands. 486. The amendment of 1851 made this " 8 How. Pr. 486. clause of the section read as follows : 8EC. II.J GENERAL DENIAL. 511 Code. In such a case tlie only thing at issue would be tlie truth of the matters alleged in the complaint." Other cases fully sustain and carry out these propositions, especially the cases of I^'ai/ v. G rimsteed,^ Houghton v. Townsejid' Gatlin v. Gunter^ Brazil V. Isham^ and. Stoddard v. Onondaga Annual Conference.'' In the latter case, indeed, it is said that the principal change made by the Code in the subject of pleading consists in abol- [*4:07] ishing this mode of presenting * defenses, or, as it is better expressed in the lauguage of Justice Johnson, " the for- mer rule, as to the matters of fact which were and which were not properly pleadable, has not been essentially changed or modi- fied, except as to matters in bar of the action which might for- merly be proved under the general issue ;" and the conclusion is ariived at, and the general rule laid down that, inasmuch as there is now no general issue, " every matter of fact which goes to defeat the cause of action, and which the plaintiff is not under the Pieces- sity of proving in order to maTce out his case, must he alleged in the answer." The phraseology in which this proposition is clothed may, per- haps, suggest criticism. Its meaning, however, I apprehend is that every fact which the plaintiff, in the first instance, is under the necessity of proving to sustain his action, or, every material fact which must or may be alleged in a good complaint, is the proper subject of a denial ; but that all other matters, that is to say, matters which do not go merely to controvert a fact, or the facts in the complaint, must be set up affirmatively in the answer," and the proposition, in a general sense, it is thought may be sustained on both principle and authority. The reason for thus requiring all matters of defense, outside of the complaint, to be pleaded, contrary to the common law and in accordance with the equity practice, is very correctly stated by Justice Beown in Fay v. GrimstcedJ " It is one of the [*408] *principal objects of the Code of Procedure to abrogate the old forms of pleading, and to bring the parties to a plain, concise and direct statement of the facts which constitute ' 10 Barb. S. C. 321. « This is the rale in the case of '' 8 How. Pr. 441 . Benedict v. Seymour, 6 How. 398, cited ' 1 Duer, 253. ante, page 403, marg. p. * 1 Smith's Com. PI. 437 [13 N. Y. 91. ' 10 Barb. S. C. 339. ' 12 Barb. S. C. 575. 512 THE ANSWER. [CH. V. the cause of action or defence, in place of the general statement heretofore in use. The form of allegation and counter allegation was adopted with a view to compel the adverse parties to disclose to each other the facts upon which they rely, to uphold the claim upon the one side, and to maintain the defense upon the other ; so that each may know what he may be required to establish or repel by the proofs upon the trial. In this respect the pleadings are similar to those which obtained in courts of equity." From these considerations a tolei-ably correct idea may be formed of the nature and use of the general denial allowed by the Code. It is, in no respect, so far as the introduction of evi- dence under it is concerned, the general issue of the old practice. It is merely an aggregation of specific denials, allowed, it would seem, more for convenience in practice than as affording any advantage to the defendant over the form of special denial, in tlie introduction of his evidence; and the effect of a general denial is precisely the same as that of a series of specific denials to each and every fact in the complaint. But the defendant is not at liberty to use both forms of denial to the sa/me facts; that is to say, if, in his answer, he sets up a general denial, he cannot go on to deny specially the allegations in detail. This would be unnecessary repetition and redundant. The Code allows a defendant, says the court in Dennison [*4:09] V. Dennison,^ to elect whether he will *answer by a general or specific denial, and having elected he is bound by it. He cannot answer in both modes. [A denial of each and every material allegation in the com- plaint is evasive and obnoxious to a motion that it be made more definite and certain. It in no way points out what allegations the defendant deems material. °] [In the case of George W. Chase v. James G. Burivside (MS.), decided at the Otsego special term the second Tuesday of March, 1854, the answer denied "each and every allegation set forth in the plaintiff's complaint, except what is hereinafter expressly and absolutely admitted." A motion was made to make this portion of the answer more definite and certain. Ceippen, J., said: If ' 9 How. Pr. 246. '' MatUson v. Smith, 19 Abb. 388, 1 Rob. 706. SEC. II.] GEISTEEAL DENIAL. 513 this form of pleading is allowed it casts upon the plaintiff's attorney the labor and responsibility of analyzing his ad\'ersary's pleadings and comparing its admissions and denials with the various allegations of the complaint, in order to determine what por- tions of it have been admitted and what denied absolutely. The object of our present system is to require the pleadings to be made simple and plain, so that the parties may know what points are admitted, and what denied or contradicted, and thus be enabled to prepare for the trial. The counsel for the respective parties may diifer in opinion as to the allegations which have been expressly and absolutely admitted by the defendant's answer. The admissions in the different portions of the answer are intermixed with other allegations of matters of defense, so as to render such admissions of little or no avail to the plaintiff. If the defendant should read such admissions as express and abso- lute on his part, independent of the matters of defense with which it is connected, then it might answer the purpose of an admission on the trial in behalf of the plaintiff, but if the defendant's counsel should insist, as he very likely would, that the whole admission must be taken together as set out in the answer, it would be of no avail to the plaintiff. If the defendant intended to admit any allegation of material matter set up in the complaint, such admis- sion should be definite and certain. The motion is granted with ten dollars costs, with leave to the defendant to amend his answer in twenty days on payment of the costs of the motion. From this the defendant appealed to the general term of the sixth judicial district, where the order was afiirmed at the July general term, 1854, Shankland, J., writing the following opinion : " That portion of the first answer, ordered to be made more definite and certain, is uncertain, and was properly disposed of in the court below, or, more properly, it should have been stricken out under the first clause of section 160, of the Code. The defendant cannot, in that mode of answering, deprive the plaintiff of the benefit of section 168, of the Code, which declares that every material allegation of the complaint not controverted by the answer as prescribed by section 149 shall, for the purposes of the action, be taken as true. The plaintiff cannot, therefore, be limited to express admissions in the answer. Whether admitted or not, 65 514 THE ANSWER. [CH. V. in express words, if not denied it is ipso facto admitted. But, again, the answer nowhere contains an express and absolute admis- sion of any thing as set forth in the complaint, and, as the answer is in that sense a general denial of the complaint, the part objected to is uncertain. In the case of James GtMen v. Lyman Tales (MS.), decided at the Chenango general term (1856), the answer set out a special contract, in part like that in the complaint, and then added, " and for a further answer this defendant denies every allegation in the third paragraph and tliird and fourth folios of the said complaint, which is inconsistent with the matters and things in this answer contained." The special term refused to order this to be made more definite and certain. On appeal this order was reversed, and the defendant ordered to do so, the court, per Shaxklaxd, J., saying: " By the 149th section it is prescribed that the answer must contain a general or specific denial of each material allegation in the comflaint controverted by the defendant. In this case the count attempted to be answered is on a special contract, and the answer, instead of a general or specific denial of the allegations, sets out a contract in part like the one stated in the complaint, avers its performance by the defendant, its non-performance by the plaintiff, and claims to recoup defendant's damages, and tlien says: "And for a further answer this defendant denies every allegation in the third paragraph and third and fourth folios of the said complaint, which is inconsistent with the facts, matters and things in this answer contained." I hold such an answer to be indefinite and uncertain, because it nowhere ajjpears, except iy inference, that the defendant intends to deny that there is such a contract as plaintiflT alleges ; nor that defendant has broken the same ; nor that the contract set up in the answer is part of the same contract set up in the complaint ; nor does it appear by the answer what allegations in the complaint are incon- sistent with the facts set up in the answer. In short, tlie answer docs not point out what allegations in the complaint it intends to deny. The answer is in effect this : The defendant alleges certain facts as a counter-claim, and then adds, //" the phiintiff's allega- tions are consistent with this counter-claim, I admit them, and, if SEC. II. J GENERAL DENIAL. 515 inconsistent, I deny them, and we will have this question of con- sistency decided on the trial. I hold that the pleader should deny, in plain terms, what he does not intend to admit, and not have his denial depend on a contingency, or the consistency or inconsistency of his statement of facts with the plaintiff's statement thereof. The order appealed from should be reversed, with ten dollars costs of this appeal." ' A general denial, well pleaded, puts in issue every material fact alleged by the plaintiff in his complaint [including what is impliedly averred.'] In an action for the conversion of property, similar to the former action of trover, an aiL-;\ver of general denial takes issue, not only upon the conversion of the property, but also upon the plaintiff 'stifle, and evidence to controvert such title may be introduced under such denial. So held in Robinson v. Frost' at a general term in the fourth district. But it is to be observed, that such general denial (and the rule is the same as to specific denial) puts in issue facts only, and not mere conclusions of law.'' [The test by which to determine whether the denials or state- ments in an answer are material or relevant is, to inquire whether they tend to make or constitute a defense. If they do so tend they catmot be considered irrelevant. A denial that the defend- ants were, during the month of March, 1854, copartners, and as such engaged iu doing business at P., in the State of California, is material.^ So where the answer alleged that the defendants had never been within the State of California, and had never personally transacted any business therein, and had no personal knowledge of what therein occurred ; and that they had no personal knowledge and no information sufficient to form a belief, and, therefore, they denied that at the time, etc., was held good.' Parties are bound to answer positively as to facts within their own knowledge ; but they are not presumed to recollect the date or contents of written instruments not in their possession or con- trol, as if it be lost." But a denial by a defendant "according to ' But see post, marg. p. 464, et seq, ■* As to what are facts, as contradis- ' Prindle v. Garuthers, 15 N. T. 429 ; tinguished from legal conclusions, see Bellinger v. Graigue, 31 Barb. 534. pages 344, marg. p., et seq. ' 14 Barb. S. C. 537 ; and see Gorwin ^ Dovan v. Dinsmore, 83 Barb. 86. V. Gormn, 9 id. 319. « Kellogg v. Baker, 15 Abb. 86. 616 THE ANSWER. [CH. V. his recollection and belief" is evasive and insufficient.' The Code requires a direct and positive denial. When the defendant merely " says he denies " certain allegations, this is a negative pregnant and not a denial.' The denial by a defendant brought in by supplemental complaint of any knowledge or information, sufficient to form a belief as to a fact admitted by the original answer, does not put such fact in issue.^ Where a complaint stated a promissory note, whereby the maker promised to pay the defendants named, " trading and doing business under the partner- ship name or firm of C. I. & Co., and that said note was duly indorsed by said defendants by their said partnership name," it was held that an answer denying "the indorsement in the com- plaint alleged " did not put the partnership in issue.' Where a complaint averred that the plaintiff, as the treasurer of a cor- poration acting under the orders of its directors, expended 8S00, in its behalf, over and above his receipts from its funds, and that the corporation was justly indebted to him in the sum of 8700, and the answer denied any knowledge or information that the cor23oration was indebted to the plaintiff in the sum of STOO, or any other sum, it was held, where plaintiff went to trial, a suffi- cient denial." An allegation that plaintiff sold property belonging to the defendants for a certain sum, and has had the use and interest thereon since said money was received, is sufficiently controverted by a denial that defendants sold the plaintiff's property, or that they received any money whatever therefor to the plaintiff's use.° Under a denial, of an indorsement, the defendant may show that there was no delivery of the indorsement.' Where the defendant wishes to deny any knowledge or information svffiGieat to form a belief, he must deny that he has either. Where he denied a fact alleged in the complaint for want of knowledge sufficient to form a belief, it was held that the denial was insufficient and the allegation was admitted.' The cases as to what are and what are not valid denials are so fully collected in the various annotated 1 Taylor v. Luther, 2 Sumn. 328, '- Simmons v. Sisson, 26 N. Y. 264. see post, 430, r/Mrg. p. ' Robinson v. The Corn Exchange ■' Blake V. Mldrtd, 18 How. 240 ; but Ins. Co., 1 Abb, N. S. 186. see to the contrary, Chapman v. Chap- ^ Denton v. Peters, Law Eep., fi mnri, ?A id. 281, Queen's Bench, 475, ' F„rhes V. Wiiller, 2.T N, Y. 430; » //c^g v, .BoiZcs, 83 How. 366, 2 Daly, Livesey v. Harding, Tamlyn, 460, 231. < Anaile v. Conklin, 25 N, Y, 470. SEC. II.] GENERAL DENIAL. .517 Codes that it is unnecessary to repeat them here.' A defendant will not be allowed to deny any knowledge or information sufR- cient to form a belief as to any fact which he is presumed to know, or when he lias the means of information within his power.'' SucIl an answer, however, is Rham not frivoloits."] Thus it has been held in several cases that a mere denial of the ownership of a promissory note, or that the plaintiff is the lawful holder thereof, without controverting any fact set forth in the complaint, or alleging any fact in the answer going to show that some other person is the real owner and party in interest, is irrele- vant and frivolous and will be struck out on motion. Tliis is said to be the constant practice in the N". T. Superior Court,* and has been followed in some instances even where the answer [*410] is verified, as in the ca.s&%of FleuryY. Roget," s.'a&*l^leury Y. Broion.' But the rule seems properly applicable only to those cases in ^vhich the defendant merely denies the owner- ship of the note, leaving uncontrove'rted the allegations in the complaint which show the plaintiff's possession and property, as in the case o? JSiggins v. TtockwellJ Where the complaint, with- out stating facts to show ownership, merely alleges that the plain- tiffs are the lawful holders and owners of the note, it would seem from the recent case of the Metropolitan Bank v. Lord,' that a denial that the plaintiffs are the owners and holders would he sufficient to raise an issue, or at least would not be regarded as a frivolous answer. The reason assigned in Catlin v. Ounter' why such denials are insufficient is that they controvert no material fact, but are denials merely of conclusions of latu, which the court, instead of receiving evidence in support of them on the trial, is bound to dis- regard as irrelevant and nugatory ; and the same rule has been ' Voorhies' Code, § 149, and notes, « 9 How. Pr. 315-217. But see con- Wait's Code, id. tra, Berich v. Gallup, 2 Code, 66 ; Tem- '' Ghapman v. Palmer, 13 How. 37 ; pie v. Murray, 6 How. 339 ; Snyder v. Hanee v. Bumming, 3 E. D. Smith, White, id. 321 ; and see this subject 48 ; jtfott V. Burnett, 2 id. 50. further discussed post, page 419. 3 Leach v. Boynton, 3 Abb. 1. ' 3 Duer, 650. * Catlin V. Omter. 1 Duer, 365 [but » 1 Abb. Pr. 185. [Prindle v. Gar- see reversal, 11 N. T. 368] ; Eiggms v. ruthers, 15 N. Y. 439.] Rockioell, 3 id. 650 ; Flammer v. Kline, ' 1 Duer, 264 ; and see on this sub- 9 How. Pr. 316. ject, under the head of Specific Denials, * 5 Sandf. 646 ; affirmed by all the post, pages 419-431. judges of the Superior Court on con- sultation. 518 THE ANSWER. [CH. V. followed in the supreme court, in the late case of Seeley v. Englej' in which it was held that an allegation in the answer that the plaintiff " is not the lawful owner and holder of the note," is insufficient to admit evidence that the plaintiff is not such owner and holder. The same rule has been applied in regard to [*411] denials oi non-payment and indebtedness, as in *EdsonY. Dillaye^ in which such denials were adjudged frivolous by Justice Welles, and ordered to be struck out. No new matter it was said would be admissible in evidence under them. The defendant could not prove payment or any other imaginable defense, because not set up in the answer. The making of the note being admitted and no new fact being set up in the answer why the defendant ought not to pay it, his liability to pay it is a legal conclusion, from which he cannot escape. Mere general denials of indebtedness and non-payment, are, therefore, not avail- able for any purpose. It is certainly difficult to draw the line of distinction in these and similar cases, between legal conclusions which a general or specific denial does not reach and facts which such a traverse puts in issue, and which may be disproved under it, and the cases have not beerl entirely consistent on this point. Thus in Robinson v. Frost^ the plaintiff's title in an action for the con- version of personal property was held controverted under a general denial as a fact. And in Heine v. Anderson^ in a similar action, it is said that a general averment of ownership is sufficient without setting forth in the complaint the plaintiS''s title, and such averment of course is the subject of a traverse or denial. ° Even in an action to recover lands, where the plaintiff clainied the lawful title, it has been held as in Gorwin v. [*412] Conoin' * that the defendant may controvert the allega- tion of title in express words, or may set out the facts to show that the plaintiff has not the title. And yet, in the class of cases above noticed in actions on bills and notes, a denial of the ownership is considered nugatory, and the facts showing title out of the plaintiff are required to be pleaded. The subject, in what- 1 17 Barb. S. C. 530 [but see reversal, « 14 Barb. 536. 13 N. Y. 543] ; see, also, Lefferta v. * 3 Duer, 318. Snediker, 1 Abb. Pr. 41. '* See, also, Qoram v. Gary, 1 Abb '' 8 How, Pr. 273 ; see, also. Brake v. Pr. R. 385. Ooekroft, 10 How. 377, 1 Abb. Pr. 363. « 9 Barb. 319, Gen. T., 4tb District. SEC. II. J GEMEKAL DENIAL. 519 ever aspect it is viewed is not free from difEculties, and perhaps no universal rules can be laid down by which to test in all cases the sufficiency of a denial.' We shall have occasion again to allude to this subject when we come to consider another branch of it, namely, what matters must be alleged in the answer affirm- atively by way of defense.'' It is, perhaps, sufficient to remark here, that a general denial, under the present system, is not, in all cases, the safest mode of presenting an issue on the part of the defendant. Where a reasonable doubt arises whether the allega- tion which he wishes to disprove is really a legal conclusion or not, it will be advisable, instead of using the general traverse of the Code, to set forth briefly the simple facts — not the mere evi- dence of the facts — on which he relies to disprove such allegation. [In suits by or against corporations created by or under any statute of this State, it is not necessary to prove, on the trial of the cause, the existence of such corporation, unless the defendant shall have alleged in the answer in the action that the plaintiffs or defendants, as the case may be, are not a corporation.' So that if a defendant desire to show that a plaintiff or defendant is not a corporation, it is not sufficient to deny the allegations of incorpo- ration, but nul tiel corporation must be specially pleaded. Indeed, it is not necessary that the complaint should contain any allegations of incorporation.'' The statute does not apply to foreign corpo- rations.* The statute provides" that the certificate of a notary public, of the protest of a promissory note or bill of exchange, shall be presumptive evidence of the facts contained in such cer- tificate,' unless the defendant shall annex to his plea an affidavit denying the fact of having received notice of non-acceptance or non-payment of snch note or bill. When the defendant desires to compel the plaintiff to produce the notary as a witness, such an affidavit should therefore be annexed to the answer ;° although if he do not he may controvert the facts stated in the certificate." A ' Prindle v. Oaruthers, 15 N. Y. 439 ; ' National Bank v. Orcott, 48 Barb. Bellinger v. Graigue, 31 Barb. 534. 256. ' Post, section 3 of this chapter; and « Laws 1833, ch. 371, § 8, 4 Edm. see as to Specific Demals, post, p. 419, Stat. 619. et seq. ' ' Seneca County Bank v. Neass, 5 ' 3 R. S. 458, § 3, as amended in 1864, Deuio, 834, 3 N. Y. 443. p. 1006, 6 Edm. Stat. 396. 8 Qawlry v. Doane, 48 Barb. 155 ; ^ Plimnix Bank v. Donnell, 40 N. Y. Dunn v. Devlin, 3 Daly, 133. 410 ; Lighte v. Everitt, etc., 5 Bosw. 716. ' Qawtry v. Doane, 48 Barb. 155. 520 THE ANSWin:. [ch. v. denial in the answer raises the issue ; the affidavit merely changes the burden of proof.' A ^•erifieation of an answer denying pro- test is not a sufficient affidavit ; there must be a separate affidavit of the facts required by the statute.' An affidavit by the defend- ant that he received notice of protest, but alleging " the want of sufficient knowledge to form a belief whether or not he received due notice of said protest," is not sufficient.' An affidavit by an indorser denying, >iccording to his knowledge, information, recol- lection and belief, the receipt of any notice, lias been held to be sufficient.' Merely setting up in an answer a statement of facts inconsistent with the allegations in the complaint, does not amount to a denial of the latter.' If the answer merely implies that the allegation is controverted, or justifies an inference that such is or will be claimed to be its effect, it will not be construed as a denial.'] Specific denial ! — Under the former course of proceedings in actions at law there were three descriptions of pleas in bar : 1st. The general issue. 2d. A denial of a particular allegation in the declaration, [*-±13] *3d. A special plea of new matter not apparent upon the face of the declaration.' The first of these, the general traverse, or issue, has been aJi-eady considered, and, as we have seen, in some respects answers to the general denial of the Code. The second form of defense, above mentioned, answers to the specific denial of the Code. This form of denial, in some of its uses, under the new system, is not unlike the common and. sjx'cial traverse' of the old. Thus, under the ' Wardv. TTirfcr/ioust;, 3 Rob. 653. no legal notice has been received, or ' Larmng v. Po/cy, 13 Abb. 273 ; that none was IcgaHii served. Dresser Yoking V. CatUtt. 6 liaer, 437 ; Arnold v. Stansfield, li Mees. & Welsb. S3'2. v. The Eock, etc., 5 id. 307 ; Burrall If, however, a valid notice be properly V. De Groot, 5 id. 379. The aflBdavit and legally sent, the affidavit could may be in the following form : Title not be made, although it should not be of Canr.r. County, s«. , ivccfcrt? until a long time after it was being sworn, says, That he is the defend- sent. Un ion Bank v. Q-regory, 46 Barb. ant in the above entitled action ; that 99, 103. he never received any notice of the ■• Z9.n-A'<')' v. TrMsMi/, lOBarb. 177, 183. non-acceptance (or non-payment) of the ' Wood v. Whiting. 31 Barb. 190 ; bill of exchange (or promissory note) Hamilton i. Hongh. 13 How. 14. on which this action is brought. 3 '^ Wi»t v. American Exchange Bank, Bur. Pr. 35, Yates's PL 345. 44 Barb. 17(i. See Isles v. tucker, 5 ^ P/i7'.?o« V. i?0(/(f, 3 Duer, 33. If an Duer, 393; Gilhert v. Cram, 13 How. illegal notice be received, or a legal 455; Allen v. Mercantile Ins. Co., 46 one be illegally served, the party can Barb. 643. safely make the affidavit in the form " 1 Chit. PI. 473. above given. The denial means that * See Steph. PI, 153 to 178. The SEC. II. J SPECIFIC DENIAL. 521 old pleadings, a party might deny any material and issuable allegation in his opponent's pleading, and this although the matter was stated with more preciseness and particularity than was necessary.' So, whatever was necessarily understood, intended, or implied, from the plea, was traversable as much as if it were expressly alleged.^ But matter not necessarily implied was not traversable ;' nor could mere matter of aggravation, or mere inducement or explanatory matter, not in itself essential to the substance of the case, be traversed ; ' nor immaterial matter,'' iior a mere matter or conclusion of law." These rules are still generally applicable under the [*4:14] Code. A specific denial may be made to any *one material issuable allegation in the complaint ; as, in an action on contract, setting forth a consideration, the defendant may simply deny, if he please, and take issue upon the fact of the consideration, or the fact of the breach of contract. But the specific denial of the Code is broader than the special denial of the common law. The defendant may now traverse or deny specifically one, or any number of the material allegations of the complaint, or each or all of them separately, if he chooses, a.s heretofore in an answer in chancery. Thus in Otis v. Ross ' it was held that an answer does not contain a double defense because it denies two facts, both of which are necessary for the plaintiff to prove to make out his cause of action ; as in a complaint for false representation, the answer may specifically deny the allega- tion that the representations were made, and also the allegation that such representations were false. The specific denial of one material issuable fact reduces the question in controversy to a single point, which, as it is found in favor of one party or the other, is decisive of the action, or of the plaintiff's right to recover to the extent of the particular relief common traverse was mainly in use. ' Id., 2 Saund. 40, East, 411, 1 Lord It was a denial by way of express con- Raym. 39 [15 IST. Y. 439, 31 Barb. 534, tradiction, in terms, of tbe allegation post, 433, OTari/ pp.'\ controverted. It was usually in the ' 1 Saund. 313. negative form, as that " the defendant •* Steph. PI. 384, 385. never was indebted," etc. If, however, ' Sands v. St. John, 33 How. 140, 36 the allegation traversed was negative. Barb. 38. as in the plea of the statute of limita- * 1 Saund. 33, note 5, 1 Chit. PI. 611. tions, the traverse was affirmative. ' 8 How. Pr. 193, see, also, 3 Code R. 1.20 Johns. 406, 1 Chit. PI. 610. 175, 4 How. Pr. 155. 66 522 THE ANSWER. [CH. V. demanded. And so, also, the denial of more than one material issuable fact, leaving others in the complaint unanswered ; the issue is exclusively formed upon the fact or facts so denied ; for, by the Code, every material allegation in the complaint, not controverted, is, for the purpose of the action, taken as [*415] true.' A similar rule applied to the common * law- traverse ; and, therefore, it was thought to be of import- ance for the defendant, in traversing one of several facts, to deny the one " most open to objection, for he admits those not expressly denied." But the omission to answer an immaterial matter, or mere conclusion of law, or any thing not properly in the complaint, is not an admission thereof, and cannot prejudice the defendant on the trial.° Indeed, such immaterial matter ' should not properly be traversed or denied at all. This was the rule of common-law pleadings ; the defendant was not allowed to traverse an allegation altogether im'material^ or take issue upon matter not decisive of the merits, as mere inatter of aggravation, not going to the cause of action, or mere inducement, or explana- tory matter not in itself essential to or of the substance of the case." The rule seems to be equally applicable to the Code, and that, too, from the very language of the section under considera- tion. It is said, however, in the case of Kimj v. Tlie Utica Ins. Co.,*' that, although the answer should properly deny material allegations only, yet, if the opposite pleading set up an immaterial allegation in a traversable form, there is no rule of pleading which can prevent the other party from denying its truth, or which requires the court to strike out that denial. The party making an immaterial allegation should not complain if issue is taken upon it. If such issues, liowever, incumber the record, or are calculated to embarrass the trial, the court would no [*416] doubt strike them out and reform *tlie pleadings on motion of either party, or on its own motion at the trial. Those allegations only in a complaint are to be deemed material which the plaintiff must prove on the trial, in order to maintain his action ; and it is uj on these only thac an issue can be taken 1 King v. TJtwa Ins. Co., 6 How. Pr. « 1 Chit. PI. 645. [Gilbert v. Bounds, 485. 14 How. 46.] « King v. mien bi.i. Co., 6 How. Pr. ^ 6 How. Pr. 485. 485. {Sands v. St. John, 33 How. 410, 36 Barb. 534.] SEC. II.J SPECIFIC DENIAL. 523 by specific denial.' ]!^or is the prayer of the complaint travers- able, inasmuch as it does not require a reply ; no issue can be taken on it." It was also an essential rule of common-law pleading that a traverse must be taken on a matter of fact and could not be on a mere inference or conclusion of law.^ As in the common case given of trespass for fishing in the plaintiff's fishery ; the defendant justi- fied that it was an arm of the sea wherein every one might fish, and a replication traversing that in the said arm of the sea every one had the privilege of fishing was held defective as putting in issue a mere legal conclusion.^ The rule has been more stringently applied under the Code than under the old system, in a variety of cases, some of which have been already cited. They have almost invariably held that conclusions of law, and, even in some instances, allegations of mixed law and fact., are not the subjects of denial under the Code so as to form an issue capable of trial. As in the cases heretofore cited of actions on promissory notes, a mere denial of indebtedness has been held bad, as controverting no material allegation of the complaint." And in like [*41Y] manner denials of an averment * in the complaint that the plaintiff is the lawful holder and owner of the note.' So the rule has been held to apply to the denial of matter of law, or of right, resulting from the facts alleged (which, under the old system, might be traversed),' and so also a pure question of law, or right, as where to a complaint on a promissory note, which did not aver the plaintiff to be the owner, the defendant, admitting the allegations in the complaint, denied that " by reason thereof" the plaintiff was entitled to judgment, this answer was held bad." A mixed question of law and fact under the old system was traversable ; as, for example, in answer to the allegation that a man was taken out of prison by virtue of a writ of habeas corpus, it might be traversed that he was taken out of prison " by virtue ' Qarvey v. Fowler, 5 Sand. 54. Mammer v. Kline, 9 id. 216 ; Draki ' Amrel V. Taylor, 5 How. Pr. 476. v. Oockroff, 1 Abb. Pr. 203 ; Edson v. 8 Steph. PI. 180, 1 Chit. PI. 645. Dillaye, 8 How. 273. ■• 3 Hen. Bl. 183, 5 T. R. 367, 2 Saund. « See ante, pp. 409, 411, and casea 159 a. there cited. ' Pierson v. Gooley, 1 Code R. 91 ; ' Steph. P]. 192. McMurray v. Qifford, 4 How. 14; ' Hoxiev. Gushman,! 'Leg.O\>s.l'&. 624 THE ANSWER. [CH. V. of that writ." ' Within certain limits the same principle must be applicable to pleadings now; otherwise, as was remarked by- Justice Selden in Dows v. Hotchldss^ it would lead to intoler- able prolixity. And though it is certainly difficult to determine how great an infusion of law will transform an allegation of fact into a mere legal conclusion, which ought not to be pleaded, and cannot be traversed, yet it would engender still greater difficulties to require, in every instance, pure facts, unmixed with any element of law, to be pleaded. Many matters which [*4:18] have been heretofore regarded and *are still regarded as pleadable facts, are really mixed questions of fact and law, such as possession,^ delivery, negligence, notice, demand, etc., etc.,' and it certainly cannot be pretended that such allegations as these in a complaint are not the proper subjects of a specific denial under which evidence to disprove them may be given. Such denials have been frequently, and no doubt correctly, admitted in practice. Thus a denial that plaintiffs were the^'om^ owners of property, in an action for the unlawful taking, was considered valid, as new matter, in Walrod v. Bennett." And so in Robinson v. Frost, cited siopra' a denial was held to put in issue the title to personal property in an action for its conversion. And in Corwin v. Gorwin^ where the plaintiif claimed lawful title in an action to recover lands, it was said that the defendant might controvert the allegation of title in express words. In Corning v. Haight,^ an allegation by one of the defendants, sued on a partnership account, that he " never was a copartner," was held sufficient to form an issue. In DicTcson v. KirribaW a denial by defendant of an allegation of presentment and non- payment of a note was held a sufficient answer ; and in Sherman and Collins v. Bushnell '° an answer denying the indorsement and delivery of promissory notes by the payee to the [*419] * plain tiif, was regarded as forming a material issue." ' Steph. PI. 193. 8 1 Code, 73. ' 10 Leg. Obs. 381. » 1 Code, 49. 3 \Parsons v. Brown, 15 id. 590 ; '» 7 How. Pr. 171, 14 Barb. 393. Hardeniurg v. Grary, 50 Barb. 33.] " But in an action by payee against * See, on tliis subject, ante, pp. 344, the maimer, on a note payable at banli, 345. an issue upon the allegation, that the ' 6 Barb. S. C. 144. note was presented at the bank at ' 14 Barb. S. C. 536. maturity, was held immaterial, it not ' 9 Barb. S. C. 319, being pretended that the defendant SEC. II.] SPECIFIC DENIAL. 525 All these various allegations, upon which the foregoing issue was raised, may be said to be mixed matters of law and fact — ownership, title, presentment, delivery ; but they are not, for that reason, mere legal conclusions, which are not the subject of traverse. Indeed, the general proposition, that a specific denial of an allegation of ownership in an action on a bill or promissory note is frivolous and forms no material issue, is to be taken with some qualification, as was noticed on a former page.' The contrary doctrine has been in several instances expressly adjudged, as in the cases of Beach v. Gakij)," Snyder v. White j' and Temple v. Murray db Ely.'' Other decisions would seem to have a similar bearing, as the case of Yan Gieson v. Yan Qieson^ affirmed by the court of appeals," where the complaint alleged that the promissory note on which the suit had been brought was not paid, and tlie answer stated that on, etc., the note had beeu paid. This was held equivalent to a specific denial, forming a good issue between the parties. So in Sawyer v. Warner,'' at a general term in the seventh district, the complaint alleged the making and delivery of a promissory note, and the defend- [*420] ant's indebtedness * upon it, and the answer averred that the defendant never gave the plaintiff the note declared on. This was considered a good denial of the allegation in the complaint that the defendant made the note, so far as making the note includes delivery. A denial of the delivery of the note, it was said, was a denial of the indebtedness upon it ; it put in issue a fact indispensable to the indebtedness.* The leading case upon the subject of the insufficiency of a specific denial of an allegation of mere ownership — that of Fleury v. Iioget° in the New York superior court, above cited — seems to be placed on the ground that upon the other facts in the com- plaint admitted, or not denied, by the answer, the plaintiff was in judgment of law the lawful holder and owner of the note, tendered the payment at the bank. ' 15 Barb. S. C. 383. Tompkins v. Acer, 10 How. 309. * [The reader will find an elaborate ' Ante, p. 410. note, showing what is a question of '' 3 Code, 66. fact and what of law, by Mr. Town ^ 6 How. Pr. 321. send, in his edition (2d Am. ed.) oj ■* 6 How. Pr. 339. Ram on Pacts, pp. 9-13.] » 12 Barb. S, C. 530. s 5 Sandl. 646. « 1 Code R. N. S, 414. 526 THE ANSWER. [CH. V. that is to say, that the complaint, irrespective of the averment of tlie ownership, showed upon its face that the plaintiff was the holder and owner, and, therefore, the denial of the ownership, leaving the facts showing ownership uncontroverted, was the denial of a mere conclusion of law, and as such was frivolous. [A denial that the plaintiff is a lona fide holder of the note, or that he received the same in the course of business, or that he advanced any new consideration therefor, is insufficient.' In order to constitute a valid indorsement of a bill of exchange, as against the indorser, the holder must write his name on it, and a manual delivery of it by him, with the intention, not only to pass the property in it, but to guarantee the payment, if the acceptor makes default ; and evidence of facts showing the absence of this intention is admissible under a denial of the indorsement. Under such a denial the indorser may show the indorsement was made for a specific purpose." A denial in this form : " The de- fendant, answering the complaint in this action, says he denies each and every allegation contained in the complaint," is not frivolous.' The word "says" does not render it so, although it renders the denial inartistic, and should not be used.] Precisely the same principle governed the case of Drake v. CocJiroft,^ in the N^ew Toik common pleas, in which a denial of the allega- tion that the plaintiff was indebted, without controverting any of the allegations of fact in the complaint which went to show the indebtedness as a conclusion of law, was held frivolous. And this appears to be the extent of the rule, as was observed on a pre- [*421] vious page," and as seems fairly inferable from *snbsequent decisions," as in the case of the Metropolitan BanJc v. Lord,'' in which the allegations of fact in the complaint did not very clearly establish the legal conclusion averred therein that the plaintiff was the lawful holder and owner of the note, and an ' Plant V. Schuyler, 4 Abb. N. S. 146, think, however. Chapman v. Ghap- 7 Rob. 271. man is more in consonance with the " Dereiorev. Pete's, L. R., 5 Q. B. 475. present liberal views as to the con- ^ Ghapman v. Ghwpman, 34 How. sti-uction of pleading. 381, disapproving Arthur v. Brooks, 14 "1 Abb. Pr. 303, 10 How. 377. Barb. .535, and Blake v. Eldred, 18 How. ' Ante, p. 410, marg. p. 240. Arthur v. Brooks is a general " Gatlin v. Gitnter, 1 Duer, 265 ; Uig- term case, and it may be doubted whe- gins v. Rockwell, 2 id. 650. ther Ghapman v. Ghapman, aX special ' 1 Abb. Pr. 185. term, will be held to overrule it. We SEC. II.] SPECIFIC DENIAL. 537 answer denying this conclusion, accompanied with, a denial that the payee of the note delivered it to the plaintiff, was held by Justice BoswoRTH not to be a frivolous answer. In cases, therefore, where the complaint upon its face contains the facts which in judgment of law show the plaintiff to be the owner, or show the indebtedness, etc., and which, when proved, yrhnafacie, entitle him to recover, it will not do for the defend- ant to deny specially the ownership or the indebtedness. He may, if he choose, deny any fact alleged going to impeach the plaintiff's title or ownership, or the indebtedness alleged, etc. ; as for example, in case the action is on a note, he may deny that he executed the note, or that the payee indorsed or delivered it to the plaintiff; and this will form a good issue. But, if he rely upon the fact that the plaintiff has parted with the title, or that some other person than the plaintiif is the real party in interest, he must set up affirmatively the facts going to establish such defense.' This agrees with the case of Rusf>ell v. [*422] *C?a^j9,'' wherein an answer was adjudged defective on demurrer which alleged generally that the plaintiff was not the real party in interest, without stating the facts showing that some person other than the plaintiff was the real party in interest. [But when the answer denies that the plaintiff is the owner and holder of the note, and alleges that another person is the real owner and holder thereof and the real party in interest, it is good ; ' and so a defendant who denies an allegation in the complaint, of the transfer of the note in suit, may show the payee was in fact the owner, and that the note had been paid to him."] So also in Jackson v. Whedon,'' in the ISTew York common pleas, it was ruled that an objection that the plaintiff is not the real party in interest must be set up in the answer. And upon a similar principle is the decision in Kettletas v. Mayhee^ in the same court, holding that a denial by the defendant of the execution and assign- ^ And it has been said — Thompsons, fore entitled to sue alone. [This case Acer, 10 How 309 — that an answer is not good law. Tommisierv. Gassard, that the plaintiff is not the sole owner 17 Abb. 187.] and holder of a note, but owns it jointly ^ 7 Barb. 485. with another person, naming him, is ' Tommisier v. Gassard, 17 Abb. 187 insufficient to present a case of a de- ^ AUis v. Leonard, 46 N. Y. 688. feet of parties plaintiff, inasmuch as ' 1 Smith's Com. PI. 141. the plaintiff might he a trustee of the « 1 Code R. N. S. 363. interest of the other owner, and there- 528 THE ANSWER. [CH. V. ment to him of a lease containing a covenant for the payment of rent, merely puts in issue the execution of the assignment ; and that under it evidence to show that before the rent came due he had parted with all his interest in the lease and assignment was inadmissible. We shall have occasion to refer to this subject again, in the following section of this chapter, under the head of " What must be alleged as new matter in the answer." Another rule governing the common-law traverse was, that it must not be taken upon matter not alleged in the declaration. This, however, was subject to the exception that matter neoessa/rily implied, though not expressly alleged, was traversable.' As for example, where the allegation is that A is seized, etc., of certain property, it implies that he is solely seized, and the [*423] defendant may traverse that A is seized *alone.'' So, in a partition suit, though the person applying for the par- tition must be in the actual or consti-uctive possession of an undivided share," yet, where a bill merely alleges that the plaintiff is seized, possession is presumed or implied,' and the defendant may traverse the fact of possession, and if he prove that the plain- tiff is not in the actual or constructive possession, or that the possession is held adversely,^ the complaint must be dismissed. This rule would seem to be fully applicable to pleadings under the Code. It can make no difference whether the material allega- tion is actually averred in the complaint, or whether it is such as is necessarily implied; the implied allegation, if material, may be denied, and matters merely going to controvert or disprove such fact may be proved under such denial. This seems to rac to be the necessary conclusion from most of the cases since the Code. Thus, in Lord v. Gheesborough' the complaint was on a promissory note transferred to the plaintiff, and did not set out the facts of the transfer and delivery to the plaintiff. The defend- ants traversed these facts, and the court held it was competent for them to do so. In Van Gieson v. Van Gieson ' it is said that the possession of a promissoiy note implies that it is not paid, ; nd a denial of payment was thought to be a denial of a 1 Steph. PI. 173, 194 ; 1 Saund. 313 ; ^ 9 Cow. B. 530. {Florence v. Hop- 6 Mod. 158 [ante, 413, marg. p.] kins, 46 N. y. igg.] ■' 2 Salk. 629. « 4 Sandf. 696. 1 Code R. N. S. 332. « 3 Paige's Ch. 242. ' 1 Code R. N. S. 414. " 3 Barb. Oh. 398. SEC. II.J FOEM AND EFFECT OF DENIAL. 529 [*424:] material allegation in the complaint ; *the allegation that the note is unpaid at the commencement of the suit, it seems, is unnecessary.' So, too, the presumption of law is that the holder of a note is the owner ; ' but the denial of such an allegation, without alleging title in a third person, would be unavailing." This, as has been already observed, is on the ground that ownership is a mere inference of law resulting from facts; and same may be said with regard to the traverse of the allega^ tion that a plaintiif is the real party in interest when implied in the complaint, as in Russell v. Glapp* Such an allegation is not properly the subject of a specific denial, not for the reason that it is not expressly alleged in a complaint, but because it is a mere legal conclusion. The rule, therefore, in regard to the denial of implied as well as of express allegations is, that they must be material allegations of what the law regards as pleadable facts, otherwise they are not traversable and no issue can be taken upon them. In a former part of this work ' the subject of implied material averments in the complaint was considered, and the reader is referred to what was there said in illustration of the sub- ject now under discussion. Every material averment of fact in a complaint necessarily implied from the other facts alleged, accord- ing as the rule is there laid down, it is conceived is as properly the subject of a denial as though such averment were set forth in express terms. [*425] *TJie form, manner, and effect of a general or specific denial. The subject has been incidentally noticed in the foregoing observations on the nature and use of the general and specific denial ; and a few remarks in addition is all that can be necessary. As the Code was originally framed the denial was in all cases required to be specific. In favor of the section as it thus stood, it was urged that if a general denial were allowed it would defeat the whole policy of the Code in respect to narrowing down the ' Appleby v. Elkins, 3 Sandf. 673. cause of action. Walker v. Granite [McKyring v. Bull, 16 N. Y, 397 ; but Bank, 1. Abb. N. S. 406. see Quin v. Lloyd, 41 id. 349, and ' James v. Chambers, 5 Sandf. 53, Young v. Kent, 46 id. 673. A denial and cases supra. of payment may be good where the ^Fkury v. Roget, 5 Sandf. 646, and see plaintiff is obliged to allege non-pay- cases cited ante, inarg.p. 410, 416,417. ment affirmativelT as a part of his ^ How. Pr. 347 ; 7 Barb. S. C. 483. ' Ante, pp. 330, 333, 333. 67 530 THE ANSWER. [CH. V. issue in pleadings. It was said, that although the complaint was sworn to and substantially true, yet if it contained one, even the slightest, misstatement, a defendant might deny it as a whole. A moment's examination, however, will be sufficient to demonstrate that this is not so. The answer is required to contain a " general or specific denial of each material allegation," etc. An answer that "the defendant denies the plaintifi''s complaint," or "denies the allegations contained in the plaintiff's complaint in manner and form as set forth therein," would be manifestly insufficient. Effect must be given to the words " each material allegation." And if the general denial or traverse is used, it should be strictly in the form, " each allegation," or " each and every allegation set forth in the plaintiff's complaint." This will prevent the abuse of this general form ot traverse, in cases where the plaintiff verifies his complaint for the purpose of narrowing down the issue by obtaining from the other side an admission of those material facts about which there can be no dispute. A denial of " each allegation," is in term distributive; and if a single [*426] allegation in the complaint * be true, the defendant will not be able to use this general form of traverse. The general principles, formerly applicable to answers in equity, may be very properly and safely applied to the answer of the defendant by way of denial under the Code. It was a well- settled principle in equity that the defendant must not merely answer the several charges in the bill literally, but he must answer as to the substance of each charge and not by way of negative pregnant.' He must traverse the substance of each charge in the bill positively and with certainty ; and particular precise charges must be answered particularly and precisely, and not in a general manner, even though the general answer may amount to a full denial of the charges.'' It is not enough when a charge is made with all the circumstances of time, place, etc., to deny such charge generally in the words thereof; but in all cases where the charge embraces several particulars the answer should be in the disjunctive, denying eacli particular," or admitting some and denying others according to the fact.* ' Mitf. Eq. PI. 350, Well Eq. PI. ^ King v. Uny. 11 Paige's Ch. 239 ; 865, Story's Eq. PI., § 654. Dads x. Mapes, 2 id. 105. ^ Woods V. Morrell, 1 Jolius. Ct. 107. ■* This was the equity rule. The SEC. II. J FORM AND EFFECT OP DENIAL. 531 [*427] *These mles from their very nature are generally appli- cable to the Code ; and they have been frequently, and, indeed, almost universally recognized in practice. A denial must not be, says Mr. Monell, in his recent work on Practice, to the manner and form but to the substance of the allegation. Hence, it is not enough to say, that a particular allegation of the com- plaint is not true in mannsr and form as therein stated^ but that it is not true in any manner or form, or in any of its particulars, as, for example, the defendant did not on such a day, or on any other day, promise to pay the plaintiff such a sum or any other sum. ' A great number and variety of reported cases since the Code might be referred to, in order to show the propriety and necessity of a strict application of these principles. Indeed, this subject more than any other in the whole range of pleading illustrates the truth of the remark that words were invented to conceal ideas. The ingenuity of pleaders has been racked, and the subtleties of language has been taxed to its utmost extent to invent new forms of ambiguous and equivocal denial. A refer- ence to a few of the more marked cases will explain the general nature of the subject, leaving the reader to investigate it more closely in practice, or by an examination of the reports at large. In the case oi'Mier v. Cartledge,^ in an action on two drafts, the defendant pleaded that " he denies that the defendant [*428] in said complaint mentioned *did, as therein alleged, accept the draft," etc. This was held by Justice Edmomds a defective form of denial. In this case the answer had been verified, and the affidavits used on the motion showed that the defendant might admit some of tlie the correct practice, as the Code cer- allegations and deny others. It is, taiuly does not require the answer to however, said to be improper to contain in express terms an admission express an admission under the Code of a fact alleged in a complaint. The (1 Monell's Pr., 2d ed., 364). If the contrary practice, however, is very defendant intend to admit the truth frequently pursued ; and I do not see of an allegation, he should simply why a party should be subjected to refrain from answering it at all, and the cost of a motion to correct his the allegation will stand admitted on pleading for such a defect, or how the the pleadings as formerly under the opposite party can be said, in any sense, equity rule {Clue v. Bool, 8 Paige, 88 ; to be aggrieved thereby. Code, § 163). The same has been held ' Monell's Pr., 2d ed., 364, post, 786, in one or two instances at special term marg. p. under the Code, as in Gould v. Williams, ' 4 How. Pr. 115 ; S. C. on appeal, 8 9 How. 51, and doubtless is technically Barb. 75. 632 THE ANSWER. [CH. V. drafts had been accepted by the authorized agent of the defendant. The denial that they were accepted hy the defendant, as alleged in the complaint, was, therefore, in point of fact an evasion and a mere denial of a conclusion of law. In Hopkins v. Everett^ the com- plaint alleged that the defendant " assaulted the plaintiff, and seized him by the collar, and shook hira violently ; " the answer denied that the defendant did assault the plaintiff, and seize him by the collar, and shake him violently ; and the denial was held bad on demurrer ; it should have been to each charge distinctively if the defendant intended to put the whole of them in issue.^ The case of Sallinger v. Rusk ^ was placed on a similar prin- ciple. It was an action of slander, and the defendant denied the allegation in the complaint " that on, etc., in the city of, etc., he, the defendant, did speak of and concerning the plaintiff in a pub- lic manner, and in the presence and hearing of divers persons, the following false, malicious, and defamatory words," etc. This was simply a denial by the defendant that he uttered the precise words at the precise time, and in the particular place and manner stated in the complaint, and was held defective on demurrer. " This answer," it was remarked by the court, " may, therefore, [*429] without being literally false, '"leave a good cause of action undenied. If we tolerate this mode of pleading, we abolish the substantial benefits of a verification." For similar reasons it was said in Otis v. Moss et al.* that an answer is defective where it denies the allegations in the alterna- tive form, as that the defendant made this representation, or that, or that, thus leaving it uncertain which he means to deny. The word nor, instead of or, should have been used. Arthur v. Brooks '' furnishes another example of a defective denial. To a coTnplaint, setting out the assignment of a bond and mortgage, for a valuable consideration, etc., the defendants, answer- ing, " say that they deny that on, etc., or at any other time, the said S. J)., for a valuable consideration, duly assigned," etc. The answer was held a negative pregnant ° and not a denial which put ' 6 How. Pr, 159 ; 3 Code R. 150. * 8 How. Pr. 1G3, Gen. T., Gill Dist. 2 Oranj v. Smith, 2 N. Y. 60 ; Aiwbl,-^ ' 14 Barb. S. C, 533 [but see GJiap- V. Steam Engine Go., 16 Abb. 286; Pot- man v. Chapman, 34 How. 281]. ter V. Kitchen, 5 Bosw. 566. " Si'e remarks on tWs subject, post, ' 7 How. Pr. 430. cli. viii, t5 5. SEC. II.J FORM AND EFFECT OF DENIAL. 533 in issue the assignment of tiie bond and mortgage. The mode of expression^ that the defendants "say they deny," etc., was also considered defective. A direct and positive denial of a fact, says the court, is one thing; merely saying that they deny is quite another. It would he impossible to assign perjury on an affidavit to such answer npon the denial. The defendant would answer that he had not in fact denied, but had only said to some one that ho had denied the averment in the complaint. The case of Sherman v. The New York Central Mills ' is [*4:30] another example of a defective answer, * by reason of the denials having been taken conjunctively to the allegations of the complaint. The action was upon a promissory note, and the answer denied knowledge or information sufficient to form a belief that the defendant did, " at the time, for that' purpose stated in the complaint, by its authorized agent, make its promissory note by the name and for the amount, and as is in this respect sot forth in said complaint," etc. And such answer was deemed, by the supreme court in ianc, in the fifth district, to have been prop- erly treated as frivolous, on account of the insufficiency of the denial. [Merely making a counter statement, or giving a different ver- sion of the matter contained in a previous pleading, without denying the allegations therein, is not a denial." Where a joint answer of several defendants denies an allegation in the complaint, which the plaintiff must prove to establish a cause of action against some of the defendants, but which he need not prove to entitle him to recover against the others, the answer raises a material issue for the defendants as to whom the plaintiff must prove such allegations.'] It is unnecessary to multiply these examples of defective denial. The courts universally speak the same language in regard to them. The denial must be direct and specific, not evasive, equivocal or ambiguous ; nor in the alternative, nor to the manner and form ; but it must be a denial in fact and must speak to facts, answer- ing the substance of each distinct charge and part thereof, posi- ' 1 Abb. Pr. 187. id. 176. See McGregor v. McGregor, « Wood V. Whiting, 31 Barb. 190 ; 35 How. 385. West V. American Exchange Bank, 44 ^ Bank of Cooperstovm v. Corlies, 1 Abb. N. S. 413. 634 THE ANSWER. fCH. V. tiveljr and with precision and certainty. Wlien it is said, however, tliat a denial must he positive, it is not meant that it must in all cases be so in form. The provision of the Code under consider- ation makes a very important exception in this respect which it is proper in this place briefly to notice. Denial on information ancl lelief.^ — The original Code per- mitted the defendant, as to each allegation of the complaint, to deny " any knowledge thereof sufficient to form a belief." The amendment of 1849 permitted him to deny each allegation, " according to his information and ielief or of any knowledge thereof siiffloient to form a belief P The amendment of [*431] *1851 allowed a denial " according to his knowledge, infor- mation or belief, or of any knowledge or information thereof sufficient to form a belief ;" and the Code, as amended in 1852 and as it now stands, requires the answer to contain " a gen- eral or specific denial of each material allegation of the complaint controverted by the defendant, or of any knowledge or informa- tion thereof sufficient to form a belief P These various forms and modes of denial on information and belief which the legislature has adopted from time to time, since the Code went into effect, show the great practical difficulty which attends the laying down of a fixed and arbitrary formula to embrace all kinds of denials, and every conceivable case in which the defendant is called upon either to admit or deny the specific allegations made against him. The degree of particu- larity in a denial necessary for the ends of justice in one case may be very difterent from that which is necessary in another. Hence, in equity the rule was more flexible and indeed it was said that there could be no positive rule fully to provide for all the various difficulties in cases of that kind, but that each case must necessarily stand and be decided upon its own circum- stances.'' So far as a general rule, however, is to be traced in that practice, it may be stated briefly to be that when a fact is charged which is within the defendant's knowledge, as if it is done by himself, he must answer positively, and not to his remembrance [*432] or belief, at least if the fact is stated * to have happened ' See ante, marg. y. 409, et seq. "^ Story's Eq. PL, g 855, SEO. II. J DENIAL ON INFOKMATIOJST AND BELIEF. 535 recently.' But as to facts which have not happened within his own knowledge, he must answer as to his information and belief, and not to his information merely without stating any ielief one way or the other." These principles, borrowed from the equity practice, have been applied to some extent, as will be presently noticed, to cases arising under the Code. It was held in the late court of chancery, that when a defendant answers that he is " utterly and entirely ignorant " as to the fact to which he is interrogated, such answer is to be regarded as sufficient." It did not seem necessary in addition to controvert by a direct denial the allegation thus answered. [So under the Code."] Upon a similar principle in Doremus v. Lewis " under the Code of 1848 it was considered that a denial by way of reply to an answer, to the effect that the plaintiff was ignorant of the facts contained in the answer, and had not sufficient knowledge thereof to form a belief was sufficient to join an issue of fact on the allegations so answered, and that it was not necessary in addition to " controvert " them by a denial in terms. [*433] The principle, it * is thought, is equally applicable to the answer ; and has been so held, and it makes no diiference whether the answer be verified or not.' An answer in this form raises an issue, in which the plaintiff holds the affirmative, and which gives the defendant on the trial all the benefit of intro- ducing proof which he would have on a positive denial.' ' The period recognized by tlie ■■ Snyder v. White, 6 How. Pr. 321 ; general practice within which a party Genesee Mut. Ins. Go. v. Moynihen, 5 is presumed to have persona] knowl- id. 331. edge of a fact charged to have been * The contrary is stated by Mr. committed by him, as stated by Mr. Monell, in his work on "Practice." Cooper in his Equity Pleadings, is six The defendant on such an allegation, years. Coop. Eq. PI. 14. he says, leaves the case with the plain- 2 Story's Eq. PI,, § 854. tiff, who must establish it by proof, ^ Morris v. Parker, 3 Johns. Ch. 297. but the defendant is estopped from ^ Plood V. Regnolds, 13 How. 112 ; examining witnesses to disprove it.. Leach v. Boynton, 8 Abb. 3 ; Townsend He must not only aver that he has not V. Piatt, id. 825; Livingston ^. Ham- " sufficient knowledge," etc., but must mer, 7 Bosw. 670. accompany such averment with a ' 8 Barb. S. C. 125, at general term denial in order to introduce evidence 4th District, reversing the decision at to disprove the allegation. 1 Monell's special term. Pr., 2d ed., 569, 570. This practice, ' This is not at variance with the however, is manifestly incorrect ; and case of Edwards v. Lent, infra. As it has so been expressly held in Snyder tlie Code then stood the defendant was v. White, 6 How. 321. Justice Welles, required merely to deny any knowledge in that case, says, of such an issue, sufficient to form a belief ; and not " that the party thus pleading would " knowledge oi information,'" etc. have all the benefit on the trial and the 536 THE ANSWER. [CH. V. A denial in an answer that a defendant '-'is ignorant of whether," etc., was held insufficient in the IST. Y. common pleas.' Such a mode of denial is, to say the least, defective in form. But it has been thought, on good authority, that a denial may be made on a party's belief, founded on his information of facts not within his personal knowledge. A denial on belief only was held sufficient by Justice Paekee in Davis v. Potter ' under the Code of 1849 ; and this agrees with what was said iu Sowel V. Fraser" and Radway v. Mather* in regard [*434] * to the allegations in a complaint. So, too, in F7'y v. Bennett^ at the general term of the superior court, an allegation in the answer that " the facts were and are true as this defendant has been informed and believes," was construed as an averment upon information and belief of the existence of the facts, and was considered good. The same thing seems to be assumed in the later case of Kinoaid v. Kijyp & Brown' decided on con- sultation of the judges of that court ; and the case of Edwards v. Lent^ in the supreme court, which will be presently cited again for another purpose, holds that a denial on belief, derived from information, is one of the regular forms of denial allowed by the Code. It is to be observed, however, in regard to this mode of denial, that, if correct in practice at all, it must be an affirmative denial of the fact controverted on the belief of the party derived from his own information. A mere denial, that the defendant has any belief, whether the allegation is true or not, or any belief on the subject at all, would be manifestly evasive and insufficient. If he answer in this form it should regularly be that " the defendant, on this information, and belief, denies," etc. ; not that " the de- fendant has no belief whether the fact," etc., is true, or any other form of words equivalent to a mere denial of belief. The plaintiff is regularly entitled, not to a simple denial of belief only, but also a denial of all knowledge or 'nformation which, same rigM to introduce evidence ttat '^ 4 How. Pr. 155. he would have in case the fact had ' 6 id. 331. been directly and positively denied ; ■* 5 Sand. 654. otherwise, it seems there would he no '5 Sand. 54, 1 Code R. N. S. 338. use nor meaning in the section giving " 1 Duer, 693, 11 Leg. Obs. 314. this form of denial." ' 8 How. Pr. 38. ' "Woodi, V, Staniel, 3 Code R. 155. SEC. II. J DENIAL ON INFORMATION AND BELIEF. .037 [^435] according to the *defendant's own judgment and con- science, he regards as sufficient to form a belief on each and all the charges alleged against him.' In using the form of traverse, or denial of all knowledge or any information sufiicient to form a belief, it is evident that there .'an he no safety, except in following precisely the language of the statute.^ This has been intimated in several well-considered cases which seem to be entirely consistent with the principles of good pleading as well as with the letter and spirit of the Code. Thus, in Nichols v. Jones^ a denial to the effect that the defendant "has no recoiled ion sufficient to form a belief" was properly held a mere evasion and as forming no material issue. It is not tanta- mount to a direct denial, nor even to a declaration that the defendant did not believe he did the act complained of. In the New York common pleas, Daily, J., in the case of Mott v. Bur- nett,* was inclined to regard a denial hy a defendant of sufficient knowledge or information whereon to form a belief, as defective. At all events, he considered it better, in such a material part of the answer as this, to confine a defendant to the strict language of the Code. A construction quite as strict is very clearlj^ enun- ciated and laid down in the case of Saokett v. Richards," in the New York common pleas by the same judge, holding a denial on information and belief defective. "I suppose," he [*436] remarks, *"the construction of the amended section now is, that the defendant must deny ahsolutely, without any qualification whatever, unless he can deny that he has other knowl- edge or information sufficient to form a belief. Where he cannot do this, as where he has knowledge or information, and has formed a belief , he must deny positively ; for he cannot traverse the alle- gations now, except in one of two modes. The intention of the legislature appears to have been to allow the defendant less lati- tude in traversing the complaint than heretofore, for they have designedly omitted the provisions, allowing a denial upon knowl- edge, information or belief, and substantially re-enacted the form prescribed when the Code was first passed, and which form mui>t ' Wood r. Staniel, 3 Code R. 153. " 1 Code R. N. S. 225. « Wood V. Staniel, 3 Code R. 153. ' 11 Leg. Obs. 315. » 6 How. Pr. 355. 68 5'38 THE ANSWER. [CH. V. now he striotly followed. "'^ The case of Edvmrds v. Lent^ while holding, with most of the foregoing cases, and in opposition to that last cited, that the denial of a fact, not within the personal knowledge of the defendant, may be upon his belief, yet pursues an equally strict rule of construction in regard to the denial, that the defendant has not knowledge or information sufficient to form a helief. It is not enough to deny that the defendant has not sufficient knowledge on the subject to form a belief, without referring to his information • nor would it be enough to say that he has not sufficient information to form a belief without referring to his knowledge/ there must be an absence [*4:37] of both Jcnowledge and information sufficient *to form a belief to enable the defendant to use this mode of denial. In this opinion Justice Habeis holds that there are three forms of denial by the Code ; first, a positive denial ; second, a denial on belief alone, derived from information, and not personal knowl- edge ; and third, a denial of any knowledge or information suffi- cient to form a belief. As the opinion itself is, on the whole, a clear and intelligible analysis of the entire subject, I quote it at length : " There are three forms in which a defendant may put in issue the allegations of the complaint. The first is, when the fact alleged is a matter within the personal knowledge of the defendant. The second is, when the matter alleged is not within the personal knowl- edge of the defendant, but, relying upon his information, he either believes or does not believe the allegation to be true. The third is, when he has no such knowledge or information as will enable him to form a belief, whether the allegation is true or not. These forms of pleading may not be indiscriminately adopted. If the matter alleged is such as must, from its very nature, be within the defendant's own personal knowledge, he can deny it upon infor- mation merely. If it be a matter in respect to which he has no personal knowledge he must deny it upon his information, if he have such information as enables him to say he believes it to be untrue. When he is unable, either from his own knowledge or upon any information he has received, to saj^ whether the allega- ' And this case is approved by Jus- ' 8 How. Pr. 28. tice Bacon, in Thorn & Maynard v. N. T. Oentrai Mills, 10 How. 30. SEC. II. J DENIAL ON INFOKMATION AND BELIEF. 539 tion is true or not, he may say so, and this will be sufficient to put the allegation in issue. The answer will be insufficient if [*4:38] it denies, merely upon *information, an allegation, the truth or falsity of which is within the defendant's own knowl- edge. So also, it will be insufficient, if it allege merely that the defendant has not sufficient knowledge on the subject to form a belief, without referring to his information. It is only when he has neither hnowledge nor information to enable him to form a belief on the subject, that he can controvert an allegation under this provision of the Code. " Tested by these rules, those portions of the answer which the plaintiff moves to strike out are obviously defective. Whether the plaintiff gave the defendant notice that the rate of insurance would be increased, and whether, upon receiving such notice, thej^ gave the plaintiff the authority stated in the complaint, are matters which must be within the personal knowledge of the defendants. They were bound, therefore, unless they would admit the alle- gations, to deny them positively. It was, to say the least, an evasion for the defendants to controvert these allegations by say- ing they had not sufficient knowledge to form a belief in respect to them. " But all three of the paragraphs to which the motion applies are defective for another reason. In each instance, the defendants state that they have not sufficient knowledge to form a belief, and, therefore, they controvert the allegation. The defendants only speak of their want of knowledge. Before they can be allowed thus to controvert an allegation, they must declare not only their want of knowledge, but also their want of information. It may well be that the defendants could not say they had no sufficient knowledge or information to enable them to forna a [*439] *belief whether the allegations they were answering were true or not. We have seen that it is only when there is an absence of such knowledge or information that this mode of answering is allowable." The former practice in equity was quite as strict in regard to the answer of a defendant on information and belief. The case of Robinson v. Woodgate ' is an example of this. In that case the ' 3 Edw. Oh. 423. 540 THE ANSWER. [CH. T. answer alleged that the defendant " did not know or believe " that he was insolvent. The vice-chancellor held this to be insufSeient. The defendant was bound to answer as to his information on the subject, if he have any, and to express hisbelief or disbelief founded upon that information. If he have no information, as well as no knowledge, in relation to the circumstances charged, then he need not say any thing by way of belief. The rule under the Code, as indicated in the opinion of Judge Haeeis, just cited, is the same with the exception or addition that if the defendant has no personal knowledge, but has information from which he does not ielieve the charge to be true, he may deny the charge on such information and belief. But a defendant can in no case be excused from answering as to his information. It seems, however, that he may answer that he has no knowledge or information whatever, sufficient to form a belief, except what is derived from the com- plaint.' Though he would not be permitted to say that he had no knowledge or information, etc., except from documents [*440J which are not made part of * the answer and are not set forth.'' But when certain documents are set forth, histori- cally, in the stating of the bill, the defendant must answer to the fact of the existence of the documents according to his knowledge or his information and belief. He is not bound to answer to the facts coTitained or stated in siich documents, unless particularly stated in the bill distinct from the documents.' These were general and well-settled rules of equity pleading. Another rule also well established, and which has been in several instances applied \inder the Code was this ; that where the fact was presumptively within the defendant's personal knowledge, or was charged so to be, he must answer positively, and could not answer to his remembrance or belief.'' Where he answers to his own he must answer the substance of each charge distinctly and particularly." The same rule in substance has been more than once followed under the Code. Thus, in Richardson v. Wilton' in the jSTew York superior court, to a complaint charging an assault, the defendant ' Tradesmen's Bank V. Hyatt, ^'EdiYr. ■'Ante, pages 431, 433; Woods v. Ch. 195. Morrel. 1 Johns. Ch. 103. * Cuyler v. Bogert, 3 P.aige's Cli. 186. » TTtica Ins, Oo,\. Lyneh, 3 Paige's Ch. " Morris V. Parker, 3 Johns. Ch. 397 ; 310. liiiiith V. Lasher, 5 id. 347. " 4 Sandf. 708. SEO. II.] DENIAL ON INFORMATION AND BELIEF. 541 denied knowledge or information sufficient to form a belief, and the answer was struck out on motion as sham or frivolous. The court thought there might be cases in which, although apparently within his knowledge, the defendant does not know or remember the facts alleged. If so, he must in his answer, or in the [*44:1] ^affidavit verifying it, state the lapse of time or other circumstances which he supposes will warrant the qualified denial permitted by the Code. Precisely the same thing was decided at special term in the New York common pleas by Daily, J., in Mott v. Burnett,^ in which the question arose on an answer of one of two defendants denying knowledge or informa- tion, etc., whether said defendants, or either of thetn, made the note on which action was brought. And at general term in the same court, in Hanoe v. Hemming,^ the denial of knowledge or information sufficient to form a belief whether a certain judgment, of which the defendant had constructive but not actual notice, had been rendered or not, was held to have been properly struck out as sham. To permit a party so circumstanced, says the court, with every means of knowledge within his power, to answer that he has no knowledge or information sufficient to form a belief whether the judgment was recovered, would be to sanction a palpable evasion.^ The same rule was followed in the same court in Ketcham [*442] V. Zarega,^ in which the defendant * denied knowledge sufficient to form a belief whether the plaintiff had recov- ered a judgment against him, as was alleged in the complaint. No doubt, there are cases, says the court, in which a defendant may be so situated that, although jyriTna facie chargeable with information of the matter alleged, he may and (answering in good faith and conscientiously) must aver the want of knowledge or information sufficient to form a belief. Probably an allegation of a judgment in a foreign tribunal might, if the defendant was not personally served with process, furnish such an example. ' 1 Code B. N. S. 325. that the partty had the means of obtain- ' 3 Code R, N. S. 201. [Oollins v. ing information directly within his Swan, 7 Rob. 633.] reach. See, also, Nichols v. Jones, 6 ' But, see Wesson v. Judd, 1 Abb. How. 355, and Edwards v. Lent, 8 Pr. 254, in the same court, in which id. 28. it is held that such an answer is not ^ 1 Smith's Com. PI. .T54. necessarily evasive, unless it appears 542 THE ANSWER. [CH. V. And, where such a state of things exists, it should be made to ap- pear, either on the pleadings, or, if a motion was made to strike out or to disregard such an answer, then it could be shown by affidavit. According to this rule, therefore, a defendant, who has the means of obtaining information directly within his reach, cannot use this qualified form of denial ; as in Wesson v. Judd,' also in the common pleas, which holds that a defendant, who admits that he executed an instrument, cannot deny sufficient information to form a belief as to facts stated in sucli instrument, or even deny that it is correctly set forth in the complaint; he is entitled to the inspection of the original, which would enable him to answer positively. Though the doctrine seems to be disproved in the case [*4:43] of Caswell v. Bushnell^ where an answer *in this form which denied knowledge or information sufficient to form a belief whether the payee of a note had indorsed and delivered the same to the plaintiff,' yet the general principle is recognized and applied in the recent case of Thorn & Maynard v. New York Central Mills* • 1 Abb. Pr. 254. 2 14 Barb. S. C. 393, 7 How. Pr. 117. * The answer bad been struck out, as sham, at the special term. On appeal to the general term of the first district, it was contended that the case came within the rule that a defendant must answer positively as to matters which it is presumed are within his own linowledge; but the court re- marlied, that to require this would be to overturn the privilege given him by the Code. It is to be observed, however, that the nature of the fact put in issue in this case is very differ- ent from that of the case of Bichmond V. Wilton, supra. There the act was charged to have been committed by the defendant himself, and mast have been within his personal knowledge, if committed at all ; while in Caswell v. Bushnell, the fact controverted by the defendant, the malcer of the note, denying knowledge or information, etc., whether the payee had indorsed or delivered it, was not necessarily within the personal knowledge of the defendant answering and could scarcely be presumed to be so. The case can- not be considered as overruling the general principle that a defendant must answer positively to a fact of which he must necessarily have per- sonal knowledge. " 10 How. Pr. 20. In that case Justice Bacon", in a full review of the subject, very clearly points out the distinction between the case of Caswell V. Bushnell, and the general principle, derived from the equity practice, as laid down in Richardson- v. Wilton, supra, and which he considers the correct principle of pleading under the Code. The true test, he thinks, to be applied in determining when a defend- ant may avail himself of the privilege accorded to him of answering in the qualified form allowed by the Code, and when he must positively admit or deny the allegation, is to inquire whether the fact alleged is presump- tively within the defeiidants knowledge. The principle of the decision on this point was approved by the general term on appeal,* and the pleading was held bad, although the decision was * Re[jorted under the title of Slierman v. The New Yorlt Central Mills, 1 Abb. Pr. 187. SEC. II.] DENIAL 0>.^ IJ1J?0UMATI0N AND BELIEF. 543 [*444] *It may be regarded, therefore, as a settled principle, that an answer palpably evasive or manifestly false on its face, as a denial by the defendant of knowledge or information sufficient to form a belief whether he committed a recent act charged against him, must necessarily be bad ; and whether tech- nically a sham answer or not, and whatever may be the mode of reaching it (which will be presently noticed), the defendant will not be allowed to avail himself of such an improper vehicle of defense. Answers palpably evasive, even by way of denial, were never allowed to frustrate the ends of justice, especially in equity ; and the courts always had general power to protect themselves and suitors against what might be regarded as a fraud upon the practice of the court. The same power, no doubt, resides in our courts, under the new system. The rules relating to the precision of answers in equity are stated with great conciseness in Lord Clarendon's Order,' and have always been regarded, and may still be regarded, with scarcely any change in the phraseology, as furnishing a [*445] safe * test of good pleading. An extract frcm these rules will not be inappropriate, in conclusion of this subject: "An answer to a matter charged as a defendant's own act must regularly be without saying, ' to his remembrance,' or ' as he believeth,' if it be laid to be done within seven years before, unless the court, upon exception taken, shall find cause to dispense with so positive an answer; and if the defendant deny the fact, he must traverse or deny it (as the cause requires) directly, and not by way of negative pregnant ; as if he be charged with a receipt of a sum of money, he must deny or traverse that he has not received that sum or any part thereof, or else set forth what part he hath received. And if a fact ttought to be erroneous in treating the that the defendant (the corporation) answer as frioolous. The plaintiff had no Icnowledge or information should have been left to his demurrer sufficient to form a belief that it did, or application to the court. It may be at the time, etc., by its authorized added that the facts in this case furnish agent, make the note. Such an answer a strong commentary on the propriety was clearly an evasion within the well- of establishing such a rule. The action established rules of equity pleading was against a corporation, on a promis- before the Code, and the decision may, scry note alleged to have been executed no doubt, be regarded as a correct pre- to the plaintiff by the corporation by cedent to test the suiflciency of the its authorized agent ; and the answer, answer under the present system, purporting to be verified by one of the ' Beames' Ord. Ch. 179. directors of the corporation, averred 544 THE ANSWER. [CH. V. be laid to be done with divers circumstances, the defendant must not deny or traverse it literally, as it is laid in the bill, but naust answer the point of substance positively and certainly." Where the defendant has no knowledge or information sufficient to form a belief as to any of the facts charged in the complaint, he may so state generally, without answering each allegation separ- ately, and put the whole matter in issue by such general traverse. Or he may answer one or more of the allegations by a positive denial, or admit one or more to be true, as in Genesee Mutual In- sioranoe Oo. v. Moynihcn,' and answer the residue in the general form of traverse, that he has no knowledge or information [*446] suificient to form a belief.^ Or he * may, in this form, take issue upon one or more of the material allegations in the complaint, leaving the residue unanswered. Or, pursuing the practice indicated in Edwa/rds v. Lent' and similar cases above cited, he may deny some of the allegations positively ; others, not presumptively within his own knowledge, on information and belief; and as to others, deny any knowledge or information suffi- cient to form a belief. There was also another mode of denial practiced in equity, which appears important to notice, and which does not seem to be inconsistent with the provisions of the Code on this subject. Statements or charges might be made in the bill, which, though true in part, were yet substantially incorrect, and which, there- fore, it might be necessary to add to, qualify or explain. To statements of this nature the defendant may not be able to give a direct answer in the first instance, and, therefore, he might state the case according to the fact, and conclude by denying that the particular statement or charge is true, "further or otherwise'' than as explained." " This," says Mr. Lube in his scientific analy- sis of the principles of equity pleading, " is the meaning of a traverse in an answer, so frequently to be met with in the books, as contradistinguished from a direct denial, and, although it is now marked by the technical words absque hoc, it is, to all intents and purposes, a traverse, being preceded by an induce- [*4:4:7] ment * of matter inconsistent with the statement of the > 5 How. Pr. 331. ^ 3 How. Pr. 28. ' Utica Ins. Go. v. Lynch, 3 Paige, ■• But see ante, marg. pp. 409, 430. 310, Lube's Eq. PI. 269. SEC. II.] OBJECTION TO DEFECTIVE DENIAL. 545 coinplaiiiant, but which, without the denial in the conclusion, would not tender an issue." ' In equity the defendant might put the allegation in the bill in issue by a general traverse at the conclusion of the answer,' and it was formerly the custom to insert immediately preceding the general traverse, a particular traverse of those parts of the bill which the defendant meant to deny." A similar practice has obtained under the Code, namely, denying specifically certain allegations of the complaint, and then, by a general denial, taking issue on the residue, or on all such other matters as are not specifically denied or answered. Under the decision in Dennison v. Dennison, cited siijyra* that the defendant must elect whether he will use the general or specific denial, it has been doubted whether, in an answer assuming to deny specifically each and all the material allegations in the com- plaint, this general form of traverse in the conclusion can be made available for any piirpose, that is to say, if some one or more of the specific denials should prove to be defective or insuflicient on the trial, whether it will be aided by the general traverse in the conclusion of the answer. Upon this point I believe we are yet without the light of any decision. [*M8] *Mere denials in an answer, it is said, need not be separately stated, as separate defenses. The section of the Code requiring this to be done has been held to apply only to affirmative defenses. '^ The viode of raising the objection to a defective denial presents a more difficult question. In some of the cases above cited it was done on demurrer ; " and although since the decision of these cases it has been held that a demurrer would not lie to a merely defen- sive answer, or at least that it would in no case lie to an answer consisting of a mere denial,' yet the recent amendment of the Code, providing that " the plaintiff may in all cases demur to the answer for insufficiency," ' as I understand it, has restored the practice of allowing the plain tifi" to take an objection to the insuffi- > Lube's Eq. PL 377. « Hopkins v. Everett, 6 How. Pr. 159'; ^ Utica Ins. Co. v. Lynch, 3 Paige's Sallinger v. Lusk, 7 id. 430 ; Arthur v. Ch. 210. Brooks, 14 Barb. S. C. 534. ^ Lube's Eq. PL 277. ' See this subject discussed and cases * 9 How. Pr. 246. cited in the chapter on demurrer, post, » Code, § 150 ; Otis v. Boss, 8 How. ch. vii, § 3. Pr. 193. « Laws of 1855. 69 546 THE ANSWER. [CH. V. ciency of the answer by demurrer, whether the answer consist of new matter or of a mere denial. Former decisions, holding that a demurrer to a mere denial would not lie,' were made under the peculiar phraseology^ of the Code before the recent amendment, which it was held confined the demurrer in terms to " new matter " or a "counterclaim." But the language is now general [*449] *that the plaintiff may in all oases demur to the answer for insufficiency. The practice, therefore, indicated in the recent case of Sherman v. The New York Central Mills,' is doubt- less correct, that where the question as to the frivolousness or insufficiency of such an answer may be regarded as doubtful, the plaintiff, if he desire to raise it, should be left to his demurrer. Another mode of taking the objection, in cases of evasive or otherwise defective denials, has been by summary motion, either to strike out as sham or irrelevant or for judgment as frivolous." But the motion for judgment on account of the frivolousness of the answer, according to the case last cited,* should be allowed only where the answer is so palpably frivolous, under the most obvious rules of pleading, as to raise the presumption that it was put in only for delay. And a verified answer, raising an issue in form, will not be struck out as sham, nor will a mere denial be so disposed of, though not verified ; the defendant has the right to have such an issue tried in the usual way.' This, of [*450] *course, will shut out a large class of cases where insuffi- cient denials might otherwise have been reached on sum- mary motion. It is intimated, also, in one case ° that imperfect and insufficient denials cannot be corrected on motion to make the pleadiiigs more definite and certain by amendment, the section of the Code allowing such a proceeding being thought to apply only to affirmative defenses. - Smith V. Qreenin, 3 Sandf . 703 ; ' Sherman v. N. T. Central Mills, 1 Ketcham v. Zarega, 1 Smith's Com. PI. Abb. 187 ; overruling on this point 557; and per Hand, J./m Kneedler v. same case at special term. 10 How. " , 10 How. Pr. 67. Pr. 19. 2 1 Abb. Pr. 187. <■ Winne v. Sickles, 9 How. Pr. 217. ^Nichols V. Jones., 6 How. Pr, 335; [Tlwmpson y. Erie Railway Company, Plump V. Harrop, 7 id. 57 ; Gonklin v. 45 N. Y. 468 ; Wayland v. Aymer, id. Vanderwort, 7 id. 483 ; Edson v. Dill- 281 ; Allis v. Leonard, 46 id. 688. aye, 8 id. 373 ; Elammer v. KUne,d lA. These cases substantially disapprove 216 ; Fleury v. Brown, 9 id. 317 ; Fleurii of the case of People v. McCumber, 18 V. Roget, 9 id, 217 ; 5 Sandf. 646 ; Lefferis N. Y. 815 (45 id. 383.)] V. Snediker, 1 Abb. Pr. 41, and similar ' Otis v. Ross, 8 How. Pr. 193. cases. SEC. III. J STATEMENT OF NEW MATTER. 647 If tlie defective denial, however, be manifestly imperfect or evasive, it may be reached on summary motion for judgment on account of the f'nvolousness of the answer under section 247,' or, in some cases, perhaps, by motion to strike out as irrelevant under section 152." Or, where no objection is taken until the trial, such evasive answer, raising no material issue, may be regarded as nugatory, and as not controverting the fact or facts which it assumes to controvert, and the answer may be read as aii [*451J admission of the facts so attempted to be put in issue ; ° *or these defective or immaterial issues may be entirely disre- garded by the court on the trial and laid out of the case altogether.* The motion for judgment on account of the frivolousness of the answer can, of course, be adopted only when there is no other issue of fact in the case. The motion to strike out as irrelevant (where such motion may properly be made) can be used either when the defective denial stands alone, or is coupled with other denials which raise material issues of fact to be tried. The subject will be considered more fully in a subsequent part of this work, in the section on sham, irrelevant, and frivolous amswera and defenses,^ and in that which treats of the effect of pleading, and what facts are to l>e deemed admitted on the trial' [*453] * SECTION III. STATEMENT OP NEW MATTER IN THE ANSWER. In addition to the general or specific denial required by the Code, the answer must also contain, if necessary to the defendant's defense : ^ Nichols ■V. Jones, 6 How. Pr. 855. strict senae, be called irr«Z««ffira<. Never- IntMa case Judge Bakculo lias drawn theless, such a denial seems to come the line of distinction very clearly be- within the definition given of irrelevant tween sham and frivolous answers, matter, as forming an immaterial issue. The latter were held to embrace a incapable of trial, and which ought not mere evasive denial which raises no to be suffered to incumber the record issue. In these dfifiuitions, Judge Hab- and embarrass the opposite party. Ris concurs, in Winne v. Sickles, 9 How. ' Ketohum v. Zarega, 1 Smith's Com. 317. See, also, Thoni v. IT. T. Central PI. 554. MBg, 10 id. 20. * Fox v. Hunt, 8 How. Pj. 13; ap- ' The subject of irrelevant answers proved in RieJitmyer v. Saskins, 9 will be considered in a subsequent id. 448 ; Myatt v. Saratoga Mut. Ins. section of this chapter. It might be Go., id. 488. doubtful whether a mere denial, how- ' Chap. 5, § 6. ever evasive or defective, could, in a ' Chap. 7, § 3. 548 THE ANSWER. [CH. V. 2. A statement of any new matter constituting a defense or counterclaim, in ordinary and concise language, without repetition.' This provision is not substantially different from the original Code, or the Code as amended in 1849 and 1851, except in the introduction of the word " counterclaim" in place of the words " set-off," inserted in the section by the amendment of 1852.' In treating the subject of the defendant's answer, in respect to the statement of new matter, I shall adopt substantially the course taken in the preceding chapter, treating of the complaint. The statement of new matter, and particularly of the counterclaim on the part of the defendant, is, in most respects, analogous to the statement by the plaintiff of his cause of action. The one [*453] is the allegation by the * party demanding relief; the other is the allegation by the party defending, or claiming on his side such affirmative relief as may be properly administered in the same action. Many of the general rules of pleading, therefore, both those provided by the Code, and those adopted by the old system, are equally applicable to the statement of the defendant's defense as to the plaintiff's cause of action ; and it will be necessary, therefore, only to refer to what was said on these subjects in the previous part of this work. 1st. What matters must he alleged iy the defendant. In a previous section,^ the question was briefly alluded to whether, under the Code, it is necessary to set up in the answer, as new matter, any thing which merely goes to show that no sufficient cause of action ever existed, or whether such mutter may be given in evidence under the general denial ; and the conclusion arrived at in the case of Benedict v. Seymour* adopted, namely : that a defense which goes directly to controvert or disjyrove any material allegation of the compla.int, may be given in evidence under a general or special traverse, and should be so pleaded ; every other defense must be specially pleaded as new matter. The subject is of sufficient importance to require some further inves- tigation. I Sub. 3, § 149. The words " or set-ofF" were not ' The subdivision of this section, as found in the original Code, or in the amended in 1851, read as follows : amendment of 1849. 2. A plain and concise statement of 'Section 1, chap. 5, unte, marg. pp. any matter constituting a defense or 400, 403. set-off, without unnecessary repetition. ■* 6 How. Pr. 298. SEC. III. J STATEMENT OF NEW MATTER. 549 It is observed in the first place that the defendant's statement is to be of " Any new matter constituting a defense^ [*454:] What, then, is this " new matter " * which the defendant is required to plead, and what is " a defense " within the meaning of the Code ? Both these terms have been the subject of repeated judicial construction since the Code; but without entering into a full analysis of the cases, *it will be sufficient, in this place, briefiy to indicate two general conclusions which 1 think may be safely drawn from them : First, that the new matter constituting a defense, spoken of by the Code, comprises a variety of matters which under the old common-law pleadings need not have been specially pleaded, but might have been given [*455] in evidence *under the general issue. And second, that it comprises also matters which, under that system, could not have been specially pleaded, such as partial payment, recoup- ment, and the like, and which now must be set up in the answer in order to admit proof of them on the trial. I shall have occasion, in a subsequent part of this section, to consider how far the terms, new matter and defense also include matter in mitiga- tion of damages, as in an action of libel, assault and battery, and the like. This view of the subject, it is believed, has been usually adopted in practice under the new system. Such was said to be the rule *In Hnughton v. TnwnseJtd, S How. Pr. 443, Justice Marvxn discusses the meaning of tlie word defense in the Code ; and thinks it is not properly applicable to a mere deniaJ, but refers to new matter; and that the new matter need not be such as techni- cally constitutes a har to the action, but may include, as in an answer in chancery, a defense pro tanto, or a partial defense, such as payment, and the like. In Stodd Ante, pp. 330, 333, marg. p. SEC. III. J STATEMENT OF NEW MATTEB. 555 promise, and the defendant specifically deny it, if the plaintiff makes oiit a prima facie case, may not the defendant give evi- dence to the very point in issue, and show that the promise vs^as .void in law and a nullity ? There are, doubtless, exceptions, resting upon authority, which cannot at this day be shaken, such as usury, and perhaps fraud, and some others which will be presently noticed ; but, as a general thing, these, it seems to me, are exceptions merely, resting upon particular reasons, and do not impair the general correctness of the principle. Take, for example, the case of an action for damages for breach of a contract to sell lands. Such contract, unless in writing, is void by the statute of frauds ; and under a general denial of the plaintiff's complaint, or a specific denial that the defendant made such a contract, the plaintiff, unless he show a valid written contract, cannot recover. [There are two methods by which a party may interpose the statute of frauds : 1st. By denying the making of the agreement alleged in his adversary's pleading,' which is simply a denial that a valid legal contract was made,° and is the better method, as it throws the burden of afiirmatively establishing the agreement upon his adversary. 2d. By admitting the allegations as to the alleged contract but plead- ing the facts showing it was void by the statute. °] Suppose, on the trial, the -plaAntiS shovld prima facie prove the signa- [*464] ture of the defendant to a written contract valid on * its face, wovdd not the defendant, under his denial, be per- mitted to show the signature a forgery? And I can see no difference between such a case and one where a defendant has been induced to enter into a contract through fear of threats, or where undue or illegal force has been used, or where the claim arises on a betting or gaming contract. In all these cases the contract is not voidable merely, but actually void; there is no ^ Spear Y. Hart, 3 B.oh. 420; Ontario Ghamplin v. Parish, 11 id. 405; Bank v. Boot, 3 Paige, 478 ; Coles v. Harris v, Knickerbocker, 5 Wend. 638, Bomne, 10 id. 526 ; OhampUn v. Story's Eq. PI,, § 761 et seq. ; Haight v. Parish, 11 id. 405 ; Harris v. Knick- Child, 34 Barb, 186, falls within the rule f.rbocker, 5 Weai. 638 ; Oibbs v. JSfash, asit was there pleaded that no such cou- 4 Barb. 449. tract as alleged in the complaint had * Dresser v. Stansfield, 14 Mees. & been made, and was decided upon the Welsh. 832. ground that plaintiff was required to ^'Ooelet V. Cowdrey, 1 Duer, 182; prove the allegations in the complaint Cozine v. Qraham, 2 Paige, 177 ; and had f ailei 556 THE ANSWER. [CH. T. contract, for the law declares that such a contract has no vitality, never had, and is a mere nudum jpactum ; and it is no douht competent for the defendant to show the fact under a general or specific denial, without setting up affirmatively the force, undue influence, etc., in his answer.' The same view is taken of the subject by Mr. Monell, in his excellent work on practice. If, he says, a suit be brought upon a promissory note, the defendant, under a general denial, may show that the note was given for a gaming debt, or under duress and the like, and is, therefore, void. By the general denial, the defendant, in efiect, says he did not make the note or contract, and if it be shown to be void it is not a note or conti-act. He also says that the amount claimed to be due is not due, because there was no contract or obligation. But, it is recommended, as a safer practice, until the question is definitely determined by the courts, to set oiit all such facts as new matter in the answer, and not rely, while it is an undecided questicin, upon being permitted to give [*465] them in evidence under the general * issue." The prin- ciple is well illustrated by Mr. Monell, by supposing the case of an action for goods sold and delivered ; a general denial would put in issue, among other things, the sale, etc., to him, and could he not upon such an issue show by proof aliunde, that the sale was not to him,, but to another person ? Clearly he could. Wherein, then, lies the difi'erence ? Can he not also show that the note was given for a gaming or betting debt, or was obtained by duress, either of which renders the note absolutely void, and which could always be given in evidence under the general issue, and need not be specially pleaded.' 1 do not think, however, that the case of infancy can properly be included in the above, but that a distinction is to be taken between such contracts as are absolutely void, or no contracts at all, and those which are voidable merely; and that, as to the latter, the facts which constitute the case upon which the defend- ant seeks to avoid a contract which the law would otherwise pro- ' [This portion of the author's re- pleaded specially. The question of marks are not approved by the editor forgery or no forgery goes to this, of the present edition. In his opinion The distinction seems to have been duress and every other defense which lost sight of by Mr. Van SantvoordJ. does not go to execution ijQ fact or ''I Monell's Pr., 3d ed,, pp.560, 564, rather the fact of execution should be ^ 1 Monell's Pr. 560. SEC. III.] STATEMEIiTT OF NEW MATTER. 657 nounce valid, should be pleaded. Thus, the contract of an infant or lunatic is not absolutely void, but voidable merely. He is bound to pay for necessaries for himself and family." An infant may also bind himself by a renewal of his promise, on coming of age.' It will, in all cases, therefore, be proper, and I think neces- sary, if the defendant mean to rely upon infancy, lunacy, [*466] or any *other fact going to show that the contract is void- able, to allege it in his answer as "new ma;ter," by way of apprising the plaintiff of the exact nature of his defense. Upon general principles, too, I see nothing in the case of a contract void for fraud to make it an exception to the rule. Fraud, in the execution of an agreement, whether by parol or under seal, renders it void, as where one agreement is fraudulently substituted for another, or fraudulently misread. So, also, all contracts made with a view to settle or compound criminal prosecutions, and generally all contracts the consideration of which is illegal. The facts constituting the fraud, or the illegality of the consideration, or other matters going to show the contract or alleged cause of action void in its inc€j>tion, may, in all cases, be properly alleged as new matter in the answer. But, it is thought, too, that such facts, under a general denial, may be given in evidence to disprove or controvert the material allegation in the plaintiflF's complaint, that such a contract was made, or was made upon a suiBcient consideration, etc., etc. The case of fraud, however, has been thought an exception to the rule, and it may well be so on the application of the principle recognized in equity. Courts of equity M'ould not relieve against a contract on the ground of fraud, unless it were distinctly [*467] alleged in pleading, for otherwise it was not deemed * in the issue." And within this principle, perhaps, was the decision in McMurray v. Thomas ' under the Code, in which it was said that in an answer alleging fraud generally, without setting out the facts showing in what the fraud consists, or that the contract was without consideration and void, was bad. This ease, however, does not really conflict with the principle above laid down. The answer of fraud generally, without alleging the ' 3 Kent's Com., 3d ed., 237. ^ g How. Pr. 14. ' Goui>erneu,rv. Elmendorf, 5 Johns. Oh. 79. 658 THE ANSWER. [CH. V. facts going to establish it, was properly held defective as the plead- ing of a mere conclusion of law. The answer, also, was held bad for another reason ; namely, because it was hypotfietioal. The complaint, which was on a promissory note, contained all the necessary allegations to establish a cause of action. The answer, first, merely denied being indebted to the plaintiffs, which was held bad as a conclusion of law ; and, second, alleged generally that if the plaintiffs were the holders and owners of the note, the same was obtained from the defendant by /razwil, and was without consideration and void, which was bad as a hypothetical answer. There was no general denial of the facts stated in the complaint, and no specific denial that the note was made and executed by the defendant upon a valid consideration. The question, therefore, was not raised whether, if the defendant had, by his answer, directly denied that he made such a contract as was alleged [*468] in the *complaint, evidence to show the pretended contract absolutely void, for fraud, might not be admissible ; nor am I aware that any such case has been decided since the Code. The case of Catlin V. Gwnter,^ cited swpra, arose upon a question of usury. Such defenses as these, however, if admissible at all under a denial, without being pleaded, should, perhaps, be strictly held so admissible only as between the original parties to the transac- tion. One of the main objects of the answer is to apprise the plaintiff of the nature of the defense ; and justice seems to require, in all cases, that the plaintiff should not be allowed to be surprised on the trial by a course of defense which he could not reasonably have anticipated. Where a contract or cause of action, therefore, valid on its face, has been assigned, the defendant should not be permitted to defeat the plaintiff's claim, on the ground that the contract was originally void for fraud, illegality, etc., without apprising him specifically of the facts on which he relies to estabhsh such a defense. The case of a note or contract, void by the statute for usury, is undoubtedly an exception. The decision in Catlin v. Ounter* is explicit to the point, that such a defense cannot be introduced under a mere denial. This, however, was but following an old ' 1 Duer, 353 ; 11 Leg. Obs. 310 [re- = 1 Duer, 353 [reversed, 11 N. T. 368]. versed, 11 N. Y. 368]. SEC. III.] STATEMENT OF NEW MATTEE. 559 and well-established rule, wliich had also been more than [*4:69] once applied under the Code. The *subjeet is fully dis- cussed in Fay v. Grimsteed^ in which it is held that the defendant cannot give evidence of usury on the trial, unless his answer sets up the terms of the usurious contract, and the quan- tum of usurious interest ; such, also, was the rule under the for- mer practice, in equity." And in actions at law the defense might be given under a notice with the general issue, but the notice must contain a precise statement of the usurious contract, and the amount of usurious interest received, and generally such matters as, if pleaded, would constitute a good plea of usury." The same rule was applied under the Code in Gould v. Homsr,* at the New York general term, and the reason is given that such strictness should be required in this, " inasmuch as the effect of such pleading, if sustained, is to set aside the entire contract, and to deprive the party lending the money of even the money lent." ' In respect to those defenses which admit that there was a suffi- cient contract, or a cause of action, but avoid it by subsequent matter, or show that the cause of action has been discharged, they should always, in order to entitle the defendant to give evidence in his defense, be specially alleged in his answer. Thus, in an action arising on contract, all matters which admit that a [*4Y0] sufficient contract was * made, or that there was once a cause of action, but avoid it by subsequent matter, as release, parol discharge, alteration in terms of contract by con^nt, non-performance by plaintiff of a condition precedent, contract become illegal or impossible to perform, insolvent discharge of defendant, accord and satisfaction, tender, arbitrament, former recovery or trial and judgment on the same demand, higher secur- ity given, statute of limitations, set-off or counter-claim of any description, payment, performance. Also, in an action for a wrong or injury, all matters which admit the commission, but justify or excuse the act, such as, in trespass, distress for doing damage, license, right of way, inevitable necessity ; also, all matters showing a discharge of the action, such as accord and satisfaction, 1 10 Barb. 8. C. 331. Obs. 344, and Watsonv. Bailey,2 Duer, « Vrooms v. Titmas, 4 Paige's Ch. 526. 509. ' Gloyes v. Tlmyer, 8 Hill, 564. ' See this subject fully discussed, * 12 Barb. S. C. 602 ; 1 Code R. N. S. Moak's note to Clarke's Ch. 373, ed. 356 ; See, also, quick v. Grant, 10 Leg. 1869, and 3 Keyes, 166. 560 THE ANSWER. [CH. V. former recovery, tender of amends for casual trespass, release, statute of limitations, etc., etc. ; ' also, in actions either on con- tract or for wrong, that the plaintiff has not legal capacity to sue, that the court has no jurisdiction,' that there is another action pending between the same parties for the same cause, and that there is a defect of parties, plaintiff or defendant, whenever any of these facts do not appear on the face of the complaint.' It is to be particularly observed that, although under [*4:71] the old system many of the above defenses * might be given in evidence under the general issue, as could also, in an action on simple contract, the defenses of infancy, lunacy, coverture, insuiiiciency of consideration, duress, the statute of frauds, etc., yet, as a general rule, the defendant had his election to plead them specially or give them in evidence under the general issue ; and although a defendant should plead specially that which amounted to the general issue, the defect was a mere matter of form, and could be taken advantage of only by special demurrer.' Therefore, there can be no objection under the Code to set forth specially each of these defenses, even though as to some of them there might not be any absolute necessity of doing so. And, it is always advisable to do so rather than encounter the risk of being obliged to amend on the trial, in order to intro- duce the proper evidence. Thus, in an action where the com- plaint alleged an express promise, supported by the consideration of a'prior moral obligation, I do not doubt but, under a specific denial of the prom^ise, it would be competent, in an action between the original parties to the contract, for a defendant to show that the promise was extorted by threats of bodily harm ; yet, at the same time, it might be proper, as well as prudent, to allege specially the fact as new matter ; and so in other cases. [*4:72] *A settlement and satisfaction after suit brought is also a defense and may be set up in the answer under the Code ;" [but judgment for part and payment thereof is no defense if defendant agreed to pay the balance."] I have already intimated that the intention of the Code seems 1 Cow. Treat., pp. 690-698. ' Code, §§ 144, 147. ' But the question of juriadiction " 2 Cow. Treat. 700, Grah. Pr. 237. may, at any time, be raised, and is not * Willis v. Ghipp, 9 How. Pr. 568. waived by a neglect to set it up in the * Mills v. Garrison, 3 Keyes, 40. answer. SEC. III.] STATEMENT OE NEW MATTER. 561 to be to follow the equity rule as to setting forth defenses, namely, that the defendant is bound to apprise the complainant of the nature of the case he intends to avail himself of by way of defense. The rule in equity was, that the complainant had a right to be informed by the answer, not only of the facts to be proved, but of the use intended to be made of them, and of the nature of the conclusions intended to be drawn.' But this did not extend so far as to allow the defendant to state arguments by way of answer, or mere conclusions of law, but he must confine himself to facts. ^ And the defendant could not avail himself of any matter of defense not stated in his answer, even though it should appear in his evidence." These rules seem to be fully applicable to the new system. Evidence can be introduced only secundum allegata,* as well in respect to the defense, as to the cause of action. The cases adjudicated since the Code fully sustain the proposition, especially those in regard to the necessity of pleading a partial defense. Other decisions hold the same language. [*473] * Thus, in Diefendorff v. Gage," it was held that a de- fendant could not give evidence of a matter of defense not set up in his answer. Under an allegation that the property was " very poor "and of very little value," the defendant, in an action to recover a stipulated price, was not suffered to prove that it was worth nothing at all, it being held, in order to admit the defense of a fraudulent representation of the article, or a breach of warranty, under the Code, in an action for the price, such de- fense must be set up with proper averments in the answer. But this does not extend to an action of trespass, or for damages for injury to property, as in the case of Dunlap v. Snyder' in which it was ruled that in an action for damages for killing a dog, • 1 Barb. Ch. Pr. 137. marg. p.; but see Durand v. Hanker- « Story's Eq. PL, § 852, Cooper's Eq. son, 39 N. Y. 287; Boyle v. Mubren, 7 PI. 313. Abb. N. S. 263 ; Mmsch v. Mensch, 2 ' 1 Barb, Ch. Pr. 137. Lans. 235, pointing out the distinction * [ Wright v. Delafield, 25 N. Y. 266 ; between a variance and a case where Rome Exchange Bank v. Mames, 1 there is no allegation upon the sub- Keyes, 588; Commercial Bank v. Ten ject; and Wood v. Brown, 34 N. Y. Eyck, 50 Barb. 9 ; Bradley v. Aldrieh, 337, where the pleading was inarti- 40 N".Y. 504; jSAort V. Sarry, 58 Barb, ficially drawn, and see post, 475, 177 ; Paige v. Willett, 38 N. Y. 28 ; Tell marg. p.] V. Beyer, 38 id: 161 ; Lewis v. Mott, 86 ^ 7 Barb. S. C. 18. id. 395 ; Perkins v. Giles, 53 Barb. 342 ; « 17 Barb. S. C. 561. See Sthermer- Wheeler v. Allen, 49 id. 460, post, 745, horn v. Van Allen, 18 Barb. S. C. 29. 71 562 THE ANSWER. [CIl. V. proof of the wortWessness of the animal is proper in mitigation of damages, although that defense is not set up in the answer. Nor is it enough for a defendant to spread out certain portions of what may be the evidence in the cause and rely upon that as an answer.' In an action to recover land, if the defendant wishes to put the title in issue, he must deny the allegation that the plain- tiffs have the lawful title, or are seized, etc., in express words ; or, he may set out the existence of the facts which, if true, would show that the plaintifl's had no title, but, by omitting [*474] to put the title in issue by a general or specific denial, * he takes upon himself the burden of stating facts in his answer sufficient to show that the plaintiff has no title." An affirmative independent fact, in no wise connected with the defense set up, cannot be given in evidence unless pleaded. Thus, in an action on a covenant against the assignee of a lessee for rent, the defendant, under a denial of the execution of the lease and of the assignment to him, can set up no other defense, and will not on the trial be permitted to prove that, before the rent became due, he assigned all his interest to a third person, who entered into possession and was in possession when the rent became due." Similar principles are recognised and applied in other cases under the Code.'' In regard to the complaint the same rule pre- vails. The judgment must be secundum allegata, as well as secundwm probata. Facts proved, but not pleaded, are not avail- able to the party. And a fact not alleged, though proved, cannot form the basis of a decree.' A similar rule prevailed in equity," and also in the admiralty or civil law practice.' But in regard to the answer, it seems, the objection is only to be raised [*475J on the * trial on the question of receiving or excluding the evidence. [Since the Code, any new matter constituting a defense or par- tial defense must be pleaded.' Adjudications to this effect have ' Pattison v. Taylor, 8 Barb. S, C. 250. ^ 2 SeW. 179 ; Bailey v. Byder, Court '' Oorwin v. Gorwin, 9 Barb. S. C. 319. of Appeals, Dec, 1853 ; Brixtol v. Rens- ' Kettletas v. Mayhee 1 Code R. N. S. sclaer tC- Saratoga Railroad Co., 9 Barb. 363, N. Y. Gen. T. 158. " Gatlin v. Gnnter, 1 Duer, 353 ; Mc- " 3 Bibb's Rep. U, 5 Jluuf. 314. Murray v. Ihomas, 5 How. Pr. 14; ' Crancli, 389. C«Wi« V. //'eHscn, 1 Duer, 309 ; Goanv. ^ Triivh v. Barrier, 24 Barb. 614; Osgood, 15 Barb. 583. Bcaty \. Swartwon't, 32 id. 293. A con- riBC. III. J STATEMENT OF NEW MATTEH. 563 been made upon the following defen&es : In an action against a sherift' for an escape, that the judgment debtor would have returned upon the limits before suit but for the fraudulent action of the plaintiff;' or that the judgment debtor was recaptured ; ' a dis- charge in bankruptcy ; ' infancy ; ' nul tiel corporation ; ' that a statute relied upon by the plaintiff was not constitutionally passed ; ° license ; ° justification as an officer under process/ and in many cases he must even plead the judgment as well as his process." A defect of parties when such defect does not appear on the face of the complaint ; ° facts which render an award invalid ; '° the existence of a custom and that the case is within the custom ; " a partial failure of consideration on account of the quality of goods sold and delivered should be pleaded by way of recoupment;'" that the defendant was of imbecile mind when he made the contract in suit/^ or was intoxicated; that the defendant was prevented from performing a contract b}' the act of God, as by a freshet ; " that a contract is illegal or contrary to public policy," unless that fact should appear on the face of the complaint when the remedy is by demurrer ; that the defendant was sued by a wrong name ; '° inability of a party agreeing to lease property to give a good title ; " extension' of time to perform a contract ; " in which case if no time be fixed a reasonable time is implied and the party insisting upon performance must also plead tender ;" laches in demanding the execution of a trust ; '° that a patent was siderable part of the matter herein, on How. 467 ; again reported by mistake, the present subject, was written by the 54 Barb. 411. editor of the present edition in a note ^ Dodge v. N. T., etc. 37 How. 534 6 to Clame's Ch. 506, ed. 1869. He is in- Abb. ISl . S. 451. debted to the courtesy of Mr. W. C. " Moorewood v. Jewett, 3 Rob. 496 ; Little for permission to use the same. Perkins v. Giles, 53 Barb. 343 ; Ryder ' Richtmyer v. Remsen, 38 ST. T. 206. v. Juny, 3 Bob. 57. = Cornell v. Dakiii, 38 N. Y. 353. " 1 Broom's Com. 67-8. 2 Treadwelly. Bruder, 8 E. D. Smith, " McGormiek v. Sarson, 38 How. 190 ; 597. Okmgh v. Murray, 19 Abb. 97. * Fulton Mre Ins. Co. v. Baldwin, '^ Harrison, ' Laraway v. Perkins, 10 N. Y. 371. 6 Patience v. Townley, 3 Smith's " Glark v. Crandnll, 37 Barb. 73. (Eng.) Rep. 333. Metcalfe's note to Ranay v. Ale.vander Yelv. 77, marg. p. SEC III. J STATEMENT OF NEW MATTEE. 567 except in slander or libel, will be stricken out as frivolous; ' and, hence, in an action for breach of promise to marry, defendant may, without pleading the fact, prove in mitigation of damages, that plaintifi' was in the habit of 4riiiJiing intoxicating liquors to excess ; " or was guilty of other improper conduct ; ° or in an action for seducing plaintiff's daughter or wife, that he was guilty of careless or improper conduct not amounting to consent ; * but if such evidence be rejected because the facts be not pleaded, it must be specially offered in mitigation.^ That plaintiff's negligence contributed to the injury, need not be pleaded; ° nor in an action for seducing plaintiff's Wife, that he and his wife were alienated in their affections.' It is not necessary, in an action, to set up a revocation of the authority of an agent.'] Much that was said in regard to the facts necessary to be stated in the plaintiff''s complaint may be applied to the statement of new matter in the defendant's answer. In respect to the set-ofP of the defendant, and every other species of counterclaim, con- stituting a ground for affirmative relief, these rules, of course, apply. This part of the subject, however, will be considered in the following section. So also to any other matter of defense, constituting a discharge or a bar to the plaintiff's cause of action. All \h.e facts must be pleaded, which the defendant will be bound to establish by evidence, to constitute the bar ; but the facts them- selves, and not the evidence, must be pleaded. In causes of action that heretofore have been denominated legal, it will generally be sufficient to state these facts substantially as in a special plea, with- out regard to form. Thus, if the defendant relies upon the statute of limitations, which he is obliged to set up in his answer, it is not enough for him to say that he pleads the statute of limita- tions, but he should state the facts conslituting the defense in the usual way, that the " cause of action mentioned in the plaintiff's ' Gilbert v. Rounds, 14 How. 46. Button v. McCauUy, 4 Trans. App. 448. ' Button V. McGaulay, 4 Trans. App. See this case below (38 Barb. 416), as to 447, 5 Abb. N. S. 39, reversing 38 Barlo. offering this evidence specially in miti- 418. gation. Kniffen v. McGohnell, 30 N. Y. " Palmer v. Andrews, 7 Wend. 143 ; 385. Kaiffen^r. MeConnell,%0'S.Y.'i'i5. ^McDonnell v. Buff en, 31 How. ^ Bunnell v. Oreathead, 49 Barb. 184. 107 ; Travis v. 'Barger, 34 Barb. 614 ; ' Barter v. Grill, 33 Barb. 388. Eahm V. Vreytag, 2 Rob. 678. ' Hier v. Grant, 47 N. Y. 278. ^ Travis v. Barger, 24 Barb. 614; 568 THE ANSWER. L<2H. V. complaint did not accrue to the plaintiiF, at any time within six years next before the commencement of the action." It is not sufficient in such an answer, even under the Code, to aver that the note or bill was not made within six years [*4'r6] next before the commencement of * the suit. The time of delivery, and not of the making of the note, should be alleged, otherwise the issue raised is wholly immaterial, and the plaintiff will be entitled to judgment upon the merits.' So, too, if he desire to avail himself of the defense of tender, he must state such facts as he will be bound to prove on the trial to constitute the defense. As, for example, that, after the money mentioned in the complaint became due, and before the com- mencement of the action, he offered to pay and tendered the plaintiff the said sum of money, which the plaintiff refused. He must also state the specific stom of money tendered, and it is not enough to state in general terms that he tendered a sum equal or greater in amount than the plaintiff claimed ; and if tender is made after suit, he must also allege that the costs were tendered and paid into court, otherwise the issue thus raised is wholly immaterial.^ And so, also, in case of tender of amends for a casual or involuntary trespass. [*4:77] *But a mere general allegation of an award having been made is insufficient; the substance at least, if not the terms, must be set forth, so that the court may see from the facts, which are affirmatively alleged, that the award is valid and bind- ing, and constitutes a bar to the action.' And generally the same rules will apply to every other defense to an action, whether on contract or for a wrong. The facts neces- sary and essential to be proved, to constitute the defense, should be stated, in order to their admission under the pleadings. I do not say that an omission to state all these facts will, in every case, be fatal on the trial, or necessarily shut out the evidence. Doubtless the court has a large discretion under the Code ; and, indeed, is required by section 176 * to disregard any defeat in the pleadings which shall not affect the substantial rights of the ' Mallory v. Lampliear, 8 How. Pr. see, also. Holmes v. Holmes, 13 Barb. 491. 137, 9 N. Y. 535. * People V. Banker, 8 How. Pr. 358 ; * Oehm v. Levy, 3 Duer, 176. • Code, §§ 169, 170, SEC. III.J STATEMENT OF NEW MATTEE. 569 adverse party^ In such case, a party undertaking to plead a tender, accord and satisfaction, release, or any other new matter of defense, whether legal or equitable, ought not to be prejudiced by any defect or omission, even of a material allegation, if it has not actually misled or operated to the prejudice of the adverse party. As, for example, if it has failed to apprise him of some [*4:Y8] fact which he had a right to know, or some matter *upon which the defendant relies to sustain his general allega- tion, and which, by a failure to set it out, the plaintiff may not be prepared with proof to controvert. Thus, in the case of Mo- Murray V. Thomas^ the mere allegation of fraud, without aver- ring the facts to establish it, failed to apprise the plaintiff of the particular matters upon which the defendant relied, and which the plaintiff had a right to know. So, too, in the case of Gould v. Horner^ and Fay v. Grimsteed.* The same rule has frequently been held in equity. It is best illustrated, perhaps, in the case of a plea for want of proper parties. Such a plea must shpw who are the proper parties, not indeed by name, for that might be impossible, but in such a manner as to point out to the plaintiff the objection to his bill and enable him to amend by adding the proper parties.' And, indeed, there were cases in which it was required to state the names, if the more general description was not sufficient to enable the plaintiff to ascertain, with reasonable certainty, the names of the absent parties.' An objection, that the plaintiff is not the real party in [*479] interest, must be taken in the answer.' *But such answer must contain something more than the mere averment that the plaintiff" is not " the real party in interest ; " ■ it must state facts going to show that some person other than the plain- tiff is the real party.' And the same rule has been held in regard to an allegation in the answer that the plaintiff is not the lawful holder and owner of a promissory note, without alleging ' And see, further, post, ch. 9, Amend- * Story's Eq. PL, | 338.- Robinson v. tnents. Smith, 3 Paige, 333. '' 5 How. Pr. 14. ' Jackson v. Whedon, 1 Smith's Com. 3 1 Code R. N. S. 865. PI. 141. « 10 Barb. S. C. 321. » Bussell v. Olapp, 4 How. Pr. 347. ' Mitf. Eq. PI. 180, 181 ; 1 Danl. Cli. Pr. 384-388. 72 570 THE ANSWER. [CH. V. any fact or facts going to show that a third person was the owner and real party in interest.' But the rule, as was noticed on a previous page," applies only to cases where, independent of the allegation of ownership, the complaint contains facts which establish prima faoie the plaintiff's ownership. If, without controverting these facts, the' defendant sets up the defense that the plaintiff is not the real party in interest, he must state facts to show that some other person is. But where an action respecting property, personal or real, is sought to be sustained on a mere general allegation of possession and property or ownership,' this may be put in issue by a denial, without setting up in the answer facts going to show that some other person is in the possession or ownership ; for the plaintiff must prove his allegations, and the defendant, under a denial, may controvert them.* [*4:80] * Thus, an answer that the plaintiffs are not joint owners of personal property, in an action for the taking thereof," and an answer that one of the defendants " never was a copartner," ° have been held sufficient. The rule we are considering prohibits the averment of a mere conclusion of law as "new matter" in the answer, without stating specifically the facts on which it is based. Thus, in Glark V. Hughes^ a defense, turning on the point of adverse possession, was attempted to be set up in the answer, in general terms, as an adverse possession to part of a farm, without stating what persons were in possession, or that the tenants had any title, or setting forth any facts showing their possession to be adverse ; and such answer was held insufficient. So, in Brown v. Colie^ in the New York common pleas, it is held that an answer cannot deny simple indebtedness, or that a balance is due the plaintiff', but must state the specific facts upon which such denial rests. It is said, however, in that case, that where the plaintiff loosely alleges a general indebtedness and balance, which the defendant [*4:81] as * loosely and generally denies, and the parties go to trial upon such imperfect pleadings, both parties might be permitted to go upon the broadest ground of claim and ' Tleury v. Ikiget, 5 Sandf. 646. » Walrod v. Bennct, 6 Barb. 144. ' Ante, pp. 420, 421, marg. pp. • Corning v. Haight, 1 Code, 72. ' Heine v. Anderson, 2 Duer, 318. ' l.S Barb. 147. * See ante, 409, marg. p. » 1 Smith's Com. PI. 365. SEC. III.] STATEMENT OF NEW MATTER. 571 defense; although, if the defendant qualifies his ddnial of any balance due, by alleging the specific ground on which it rests, he will be limited to that ground in his proofs upon the trial, and will be prohibited from showing any defense of a different nature. The foregoing observations, relative to the general rules which govern the statement of new matter by the defendant in his answer, it may be observed, are equally applicable to all classes of actions, those of an equitable as well as those of a legal nature. The strict analogy between the two modes of defensive pleading, regarded as pleading merely, and not as a means of discovery, even under the old systems, has been already pointed out in this chapter,* and it is unnecessary to add any thing further on that subject. I can see nothing in the Code which countenances any thing like a distinction, in the mode of stating a defense any more than, in the mode of stating a cause of action, between the two classes of cases. It remains now to notice briefly some provisions of the Code applicable to defensive pleading in particular cases ; these may be classed under the head of slander and libel, judgments, private statutes and conditions precedent, and title in actions to recover property dist/rained for [*482] damage. *And first : In an action for libel or slander — The Code provides that the defendant in his answer may " allege both the truth of the matter charged as defamatory, and any mitigating circum- stances to reduce the amount of damages ; and, whether he prove the justification or not, he may give in evidence the mitigating circumstance." " This section makes an essential change in the rules of pleading and evidence, in actions of slander and libel, namely, that where the defendant alleges the truth of the defamatory charges, or justifies the speaking or publication, he may also allege and prove circumstances in mitigation of damages ; this he could not do under the old system. A variety of questions have been raised, in regard to the true construction and meaning of this statute, and the decisions in many respects have not been uniform. I shall have occasion to notice the more important of these sases in the brief review of the subject proposed. ' Ante, pp. 398-98, marg. pp. ' Code, § 165. 572 THE ANSWER. [CH. V. The first question presented is, whether, under the Code, a defendant may deny the speaking of the words and at the same time justify. This, I apprehend, is not a very difficult question to answer.' The Code allows the defendant to set up as many defenses as he may have ; and it cannot be doubted that justifica- tion is a complete and full defense. And, whatever may [*4:83] be the rule in regard to defenses * absolutely inconsistent with each other (which will be hereafter noticed), it seems well settled that the defenses of a naked denial of the speaking of the words, and an averment of the truth of the words spoken, are not included in such rule. It was said, indeed, in Anihil v. Hunter,^ that an answer justifying the words must confess the speaking of them. But this seems to refer rather tb the form of the separate plea of justification than to its being joined with a distinct answer of denial. The rule that every defense must be either a denial or a confession and amoidance, is no doubt appli- cable in all cases ; and the separate answer of justification, standing by itself, must, upon its face, contain an admission of the speaking, otherwise the facts of the justification cannot be considered as being distinctly Siikd positively alleged ; and this, as I understand it, is the reason why a hypothetical defense of justification, in an action for slander, etc., is held bad, as in the cases of Sayles v. Woodin,^ Lewis v. Kendall,^ and others. But this does not prevent the defendant, in separate answers, from denying and justifying the speaking of the words. He may, as was said in Buddington v. Davis," deny all, or any, of the allegations of the complaint. He may, then, by a separate statement in the same answer, allege the truth of the statements contained in the libelous publication ; and then, again, if such an allega- [*484:] tion * will constitute a defense, he may state, as a third defense, that the publication was privileged, though he cannot, in the same statement of defense, deny the allegations of the complaint and set up new matter to avoid their effect. And this is sustained by the cases of Butler v. Wentworth' ' [There is now no question bnt tliat - 6 How. Pr. 255. he can. Buhler v. Wentworth, 17 Barb. ° 6 How. Pr. 84. 649 ; Ormshy v. Douglass, 5 Duer, 665 ; * 6 How. Pr. 59. Payson v. 'MacGomier, 3 Allen, 69 ; '6 How. Pr. 401. Hdlleribeck v. Cloio, 9 How. 289 ; Bryant « 9 How. Pr. 282. V. Bryant, 2 Rob. 616.] SEC. III. J STATEMENT OP NEW MATTER. 573 Stiles V. Gomstock,^ Hallenbeoh v. Clow,' and several others. But in pleading a justification now, as under the old system, the facts going to establish it must be stated. It is not sufficient to allege barely that the facts are true, but the defendant must state such facts as will show the plaintiff guilty of the offense imputed to him.' ISTor can a justification be partial, but it must go to the whole extent of the charge.* And, in an action of slander on a charge that plaintiff "is a thief and has stolen my gold pencil," the defendant, in justification, may allege a variety of thefts of different articles by the plaintiff, to show the truth of the gen.eral charge that plaintiff is a thief.' The next question which arises in pleading an answer in slander or libel is, whether circumstances in mitigation of damages are properly pleaded with a mere denial of the words and without any justification. Allegations, in mitigation of damages, [*485] may * be joined with a justification by the Code, and here consists the alteration made in the old rule of pleading. Except, in this respect, it has been thought no alteration has been made in the common-law rules of pleading in libel and slander cases. According to these rules, evidence of mitigating circum- stances might be given under the general traverse, and this has been considered to be the rule still. But the question goes further, namely, may such allegations be properly made in the answer ? [There is now no question but they may."] [*486] *Thus, in Follet v. Jewett^ Justice Selden dissents from the case of Graham v. Stone, and holds that mat- ter in mitigation may be pleaded either with or without a justification ; if pleaded, however, with a justification, it should be pleaded separate from, and not as a part of it. In Stiles v. Gomstook^ Justice Shankland intimates a similar opinion, and goes so far as to question whether evidence in mitigation can be given unless pleaded. And, in the still later case of Heaton v. Wright^ Justice James fully indorses the decision in Follett v. 1 9 How. Pr. 48. ^ Jayooeks v. Ayres, 7 How. Pr. 215. s 9 How. Pr. 289. « [Dolemn v. Wilder, 34 How. 489 ; ' Anonymous, 3 How. Pr. 406 ; Anihal Bush v. Prosser, 11 N. Y. 847 ; Bisby v. V. Hunter, 7 id. 234 ; Sayles v. Woodin, Shaw, 12 id. 67.] 6 id. 84 ; Fry v. Bennett, 5 Sandf. 54, 1 ' 11 Leg. Obs. 193. Code R. N. S. 238. « 9 How. Pr. 48. ^ Loveland v. Eosmer, 8 How. Pr. ' 10 How. Pr. 79. 215 ; Bush v. Prosser, 13 Barb. S. C. 221. 574 THE ANSWER. [CH. V, Jewett, that the defendant may allege both the truth of the matters charged and mitigating circumstances, or either j and, indeed, considers that the section of the Code under consideration has changed, not only the rule of pleading, but the rule of evi- dence, in such actions. And, notwithstanding what was [*4:87] said by Justice Harris, Brown v. Orvis,^ *and Herr v. Bamhurg,^ cited supra, I consider the doctrine laid down by him, in the more recent case of Sallenbeck v. Glow,' as fully sustaining the position that matter in mitigation may be pleaded, without justification, under a general denial* In the latter case, the defendant denied each and every allegation of the complaint, and then alleged that the words were spoken under such circum- stances and with such explanations (describing them) as to show that they were not slanderous ; and this he was allowed to do, without any justification of the truth of the words, although it was conceded that he might have been allowed to give the evi- dence under the general denial. The conclusion reached in that case seems perfectly logical, and a careful examination of the subject will, I think, show that it is entirely consistent with the true theory of the answer under the Code. Thus, a partial defense, as has been elsewhere noticed, may be pleaded. And though there may be a distinction, as was insisted by Newman v. Otto,'' between a partial defense in an action of tort, and one in an action on contract, so far as it formed the subject of a special plea at common law, yet there could be, and was, very little, if any, diiference between them as a notice to the opposite party under the general issue. Mitigating cir- cumstances might be so set up in a notice with the general [*488] issue *under the old practice, and why not now in the answer under the new ? I can certainly see no objection to it, nor in applying the equity principle of pleading, even to an answer in libel or slander cases under the Code.* Besides, it ' 6 How. Pr. 376. Libel, § 361 ; 19 Abb. Pr. 40 ; 13 How. 2 10 How. Pr. 128. 97, 14 id. 46. The question is still in 3 9 How. Pr. 289. doubt.] ■> [But see Townsend's Slander and * 4 Sandf. 668. *The case of Bush y. Prosser, in the court ot appeals (1 Kernan, 347), reported since the foregoing was written, decides tiiis question, in accordance with the views expressed in the text, overruling the decision in the same case at general term, and disapproving, upon this point, the cases o£ Oraham v. Stone, Brown v. Orois, SEC. in.J STATEMENT OP NEW MATTER. 575 should be remembered tbe ease of Graha'm v. Stone, and other cases, holding that mitigating circumstances may not be pleaded, were decided before the amendment of 1852, when a direct issue might and must be taken upon the answer by a reply, and the answer, therefore, stood in some sense as a special plea. This cannot now be done ; the answer is deemed " contro- [*'i89] verted," not for the purpose of ""'raising an issue simply, but to put the plaintiff to his proof, as he was before in respect to matters set up in the notice with the general issue, and to which neither reply nor demurrer was allowed. I consider, therefore, the true doctrine to be, that there is nothing in the case to prohibit such pleading if the defendant choose, though it is, perhaps, better to avoid it if the matter is such as may clearly and without doubt come in under a denial. But the matter set up in mitigation must not be scandalous, nor irrelevant, nor such as clearly cannot be given in evidence for any purpose ; otherwise it will be struck out on motion. In Graham v. Stone, supra, the court noticed an error into which the defendant's attorney and many others had fallen, in regard to the character of the mitigating circumstances which the defendant might allege. It was not any thing and every thing he might deem proper to excuse or palliate the offense charged ; but only such circumstances as the well-established rules of law allow as evidence in mitigation and nothing more. And the same doctrine was held in Brown v. Orvis ;^ the defendant may allege 1 6 How. Pr. 376 [Dolevin v. Wilder, 34 How. 489.J and similar cases above cited. In the carefully considered opinions in this case, it does not seem to be expressly adjudicated whether matter merely in mitigation must be pleaded, or whether such matter might be given in evidence under a general denial. It is intimated, In the opinion of one of the judges, that the decision of this question was immaterial to the case under consideration, but he considered, nevertheless, that "the facts (mitigating circumstances) may and should be pleaded." Per W. F. Allen, J., page 353. The question may still arise whether, if there be no general or special denial or justi- fication, an answer setting up mitigating circumstances alone, forms an issue capable of trial. If we are correct in the assumption that such matter, as a general rule, is admissible on the question of damages, on the trial or assessment of damages, without being pleaded, then such matter ought not to be suffered to stand alone as a defense, and this was the principle upon which the case of Lane v. Gilbert, 9 How. 150, rested. But if the rule intimated in Stiles v. Comstoch, supra, is correct, that ev;dence in miti- gation is inadmissible unless pleaded, then such matter forms a -partinl defense, which it Is perfectly proper to plead alone, without even a denial, in the same manner as a set- off in an action on contract. 576 THE ANSWER. [CH. V. with a justification any mitigating circumstances, which he will be allowed to prove, and all else will be struck out as irrelevant. It is held in an anonymous case at special term," that under a general denial, in an action of slander, the defendant can- [*490] not give evidence of the * plaintiff's bad character. It does not appear from the brief note of the case, as reported, upon what ground the decision was put. The contrary was held in another anonymous case ' by Justice Baeculo, and is in accordance with the common-law rule,^ and is, no doubt, correct practice under the Code. The rule at common law was, that facts and circumstances which tend to disprove malice, by showing that the defendant, though mistaken, believed the charge to be true when it was made, might be given in evidence in mitigation of damages ; but if the facts and circumstances offered tended to establish the truth of the charge or formed a link in a chain of evidence going to make out a justification, they were not admissible in mitigation of damages ; that is, if the evidence tended to make out a justifi- cation and fell short of the charge, it was not admissible either in justification of the charge or in mitigation of damages. The case of Bush V. Prosser,* at general term, held this rule of the common law to be unchanged by the Code. But that case was reversed by the court of appeals,' and it is now decided that a defendant, if his defense falls short of a justification, may prove the same facts in mitigation of damages.* J 6 How. Pr. 160, per Cadt, J. * 13 Barb. S. C. 238. •' 8 How. Pr. 434. » 1 Kern. 347. s 1 Phil. Ev. 146, 2 Cow. 282, 7 id. 613. * The recent cases of Whrede v. Bennett (reported in the N. T. Times), in the N. Y. superior court, is in accordance with this decision. Hoffman, J., says: "I appre- hend, then, that the Code, § 165, has brolien in upon the rule, which is stated in Cooper V. Barber, 24 Wend. 107, and other cases, that evidence going only to damages must be such as admits the charge to be false ; that if it tend to make out a justification, and fall short of the mark, it is inadmissible as to damages, because it does not admit the falsity. And it appears to me that the rule, as declared in ChaJmcr v. Shackle, 6 Car. & Payne, 475, now prevails, viz. : That if a .I'ustification is pleaded, but the evidence falls short of satisfying the jury that the offense was committed by the plaintiff, yet they may take the facts into consideration, in estimating the damages. Nor do I see that there exists a sound distinction between a justification of the publication resting upon its being privileged, and one resting upon the charges being true. I cannot see the good sense or sound logic of a rule which prohibits a defendant from urging that although the evidence he has adduced cannot legally warrant a substantial conviction for the crime charged, yet it so closely approaches to it as to free the publication from SEC. III.] STATEMENT OP NEW MATTER. 577 [Matters ■whicli tend to disprove malice may be pleaded in mitigation of damages, althongli they may tend to prove tlio truth of the matters complained of. Defendant must plead facts and circumstances which would reasonably induce in the mind of a person of ordinary intelligence and knowledge a belief of the truth of the charge, and show that defendant wlien he made the charge knew or Iiad been informed of such facts and circumstances. He sliould also allege that such facts and circumstances induced him to believe the charge to be true.' An allegation that the words were spoken in the heat of passion caused by the present acts and conduct of plaintiff are proper ;" so any facts tending to mitigate the damages.' In an action for libel, an answer setting up that the defendant made the publication at the request of and on the information of a third person is bad.* Where matter is set up in mitigation it should be so stated,' although if it contain facts properly pleaded as a defense, either in bar or in mitigation, it is not -easy to see how a demurrer will lie thereto." The defendant is not obliged to plead or show whjr or how the law enables him to do so. In slander, for repeating a rumor that plaintiff had failed, the defendant if he would justify must plead facts showing that he believed the words spoken to be true, and spoke them on a justifiable occasion.''] ['■''491] * This brings us to another question, namely, whether, if a defendant denies the charge and sAao just ifies, he may introduce in mitigation of damages evidence of facts not set up in the answer. The Code provides that the defendant "may allege both the • Dolevin v. Wilder, ?>i Ho%v. 89 ; lie add that " lie believed suoli infor- Qorton v. Keeler, 51 Barb. 475. niation to be true," which allegation ^ Dalevin v. WiUJrr, 34 How. 89. was contained in the answer in ILigcr ^ Townsend on Slander and Libel, v. Tihhetts. § 414 ct seq. The reader should con- ' Hurler v. Tilihetta, 2 Abb. Iv . S. 97, suit Mr. Townsend's excellent work ,'5 Coiiw. Rob. Pr. 103, Voorhies' Code, where he will find the cases fully cited, note f to ^ Ki."!. ■• Harjer v. Tihbetts, 2 Abb. N. S. 97 ; ' Gorton, v. Ki'rJn-, 51 Barb. 483. but see Buson v. Dale, 19 Mich. 17, if ■> Wat/dn v. Hall, L. R., 3 Q. B. 39G. that imputation of malice, wliich, without such evidence, would attach to it. At any rate, until otherwise instructed, I consider the Code as permitting the use of the testi- mony for such a purpose. It is obvious that this proposition is widely different from that of tlie admissibility of mere rumors, or of general bad character and repute. It was against this that the celebrated opinion of Baron Wood was directed in Jones v. SUpliens, 11 Price, 2.35. With these views, I am not able to say that any part of this answer is irrelevant or badly pleaded." See, also, I-Ieaton v. Wright, 10 How. Pr. 07. 73 578 THE ANSWER. [CH. V. truth of the matter charged as defamatory, and may give evi- dence of tlie mitigating circumstances wliether he prove his justification or not. This he could not do before. But if he neglect, with his justification, to allege the circumstances on which he relies in mitigation, may he still prove them, notwithstanding he has set up in his answer the truth of the words spoken '{ [*492] *I am not aware that there has been any express decision to the point, but it seems to me the question must be answered in the affirmative. We have already seen that the defendant may separately deny and also justify in the same answer. We have also seen that under his denial, mitigating circumstances, going to the question of damages, merely, may be proved. The abatement of damages by reason of the mitigating circumstances, as want of malice, etc., etc., is a j^ciri of the defense taken by a general denial ; in other words, the allegation in the complaint of the damages sustained is a fact ujDon which issue may be taken, which thereupon becomes a question of evidence on the trial, and, if the defendant may plead as many defenses as he shall have, there seems no good reason why he should be deprived of the full benefit of a portion of one defense, namely, his general denial, simply because he has chosen to set forth another, to wit, a justification, which he has failed to prove. The section of the Code under consideration seems designed rather as a rule of evidence than a rule of pleading ; and the provision that the defendant may allege the truth of the matters charged, and mitigating circumstances, is pei-misstve, and was intended to give him a right in his defense on the trial which he did not have before.' It is not said, however, that he must plead in mitigation when he justifies, otherwise he [*493] *loses the full benefit of his general denial. I do not doubt, however, that, where the justification stands alone in the answer, the defendant will be precluded from giving evi- dence of facts not pleaded in mitigation. If the defense relied on is pivvilege, the answer may set up the facts going to establish the legal conclusion that the words are privileged. If they are privileged only on the ground that cer- 1 See tliifl subject discussed in tlie opinion of Selden, J., in BitsJi v. Prosser, 1 Kern. 347. SEC. III. J STATEMENT OP NEW MATTER. 579 tain events happened, the happening of those events must be sufficiently alleged in the answer in order to enable the defendant to avail himself of such privilege." It has been intimated that an answer denying maliae is now the proper mode of setting up the defense of privilege." But this does not accord with the theory of pleading the facts, and not legal conclusions and inferences drawn from the facts. If the matters alleged as libelous are absolutely privileged, no action will lie, however malicious or unfounded the charge may be ; and in such action it is unnecessary for the defendant to deny malice." If the defendant, therefore, set up his defense of privilege, under a mere denial of malice, it would be pleading a legal conclusion and not the facts of his defense, which, as we have elsewhere considered, is contrary to the spirit and intent of the rules of pleading adopted by [*4:94] the *Code. The defense of privilege was formerly allow- able under the plea of the general issue ; the defendant may now deny the publication, and plead this defense. Or, if th§ complaint be verified, and the defendant cannot deny the publication, he may admit it, and set iip the facts showing his privilege as a justification. Or, if these facts should be ultimately decided not to form an absolute defense, as was said in Whrede v. Bennett, heretofore cited,* they may be properly adduced in evi- dence to mitiojate damages. 1 Fry V. Bennett, 1 Code R. N . S. 238, = See note to Fry v. Bennett, 1 Code 5 Sandf. 54. E. N. S. 244. 3 Garr v. Selden, 4 Comst. 91. ♦Ante, marg. j?. 490, note. In this case, as shown by the analysis of the answer in the opinion of the court, the defendant insisted upon the following separate defenses; That the allegations in the libel and the charges made against the plaintiff are all true, with an exception, which is immaterial. The defense is, therefore absolute, no matter what motive instigated the publication. Again, that tbe charges were made under oath in a public court of justice, an action of the judge took jjlace upon them in presence of the plaintiff, which autliorized a reasonable belief that the accusations were true, and so believing them to be true, they were publislied without malice, and this is a defense. Again, that the publication was privileijed, being a narrative, with- out comment, of what took place in a court of justice, where the plaintiff was regularly brought by process to answer for an alleged offense. That this forms a perfect defense whether the charge was true or false, and whether the defendant believed or did not believe it to be true, and whether the grounds of belief were satisfactory or sufficient. And lastly, that if the defendant fails in establishing the truth of the defamatory matter, and if the facts tend to warrant a belief of it, and such a belief form no defense ; and if the plea of a privileged publication is no valid defense, then, he says, that the circumstances of the charge under oath, the examination in a public court, and the result, as detailed, are available in mitigation of dama^^es. The answer was held substantially sufficient. 580 THE ANSWER. [CH. V. Express malice, it is said, need not now l^e alleged in a [*495] complaint, even, when necessary to be shown *oii the trial ; ' nor need the defendant, when he justifies, set up want of malice in his answer, but he may do so if he choose. If it appears on the trial that the publication was made on a just occasion, the plaintiff must prove malice, or facts from which malice is inferred as a conclusion of law, and this proof the defendant may rebut by proper evidence on his part." [Words spoken or written in a judicial proceeding by any person, attorney or party, having a duty to discharge or an interest to protect, in respect to such proceeding, are absolutely privileged, provided the matter was 'material to the issue or inquiry before the court. If not material, he is liable, unless he can show that he spoke or wrote the words in. good faith, without malice, and having reasonable and probable cause to believe they were both true and material. Where words, concededly defamatory, are spoken or written in a judicial proceeding, the speaker or writer, if he claims them to be privileged, must show clearly that sf eh defamatory matter was material to the issue or inquiry before the court. A demurrer to a complaint, for such speaking or writing, must fail, unless the complaint itself show the materiality, as the demurrer admits the falsity of the words. The defendant should plead the facts by answer, and show the materiality affirmatively.' Words imputing to a mechanic want of skill or knowledge of his craft, are actionable per *■<;'.' Where defendant pleaded that he was a county court judge, and the words complained of were spoken by him in his capacity as such judge, while sitting in his court, in trying a cause in which the present plaintiff was de- fendant. Eeplication, that the said words were spoken falsely and maliciously, and without any reasonable, probable or justifiable cause, and without any foundation whatever, and not Tjonafide in the discharge of the defendant's duty as judge, and were wholly irrelevant in reference to the matter before him, held, that the replication was bad, and the action not maintainable. °] The form and requisites of an answer in slander and libel have ' Purdy V. Carpenter, G How. Pr. ^ MarsJi v. Ellsworth, 36 How. 532, 1 36G. Sweeny, 53. 2 Id. " FiUc/erald v. Red-field, 51 Barb. 484. 5 Scott V, Staiufleld, L. R., 3 Excli. 3'20. SEC. III. J STATEMENT OF NEW MATTER. 681 already been noticed. It must, as in any other class of actions, either deny or traverse all the material allegations in the com- plaint, or it must confess and avoid them.' It should be certain, direct and positive, and must state facts, and not arguments, and must not be hypothetical or in the alternative." An issue cannot be taken by answer on a mere inuendo, or explanation to the meaning of the words published or spoken. If the inuendo is not confined to mere explanation, but materially enlarges the sense of the words, the proper course is to demur.' !Nor are alle- gations in the complaint relative to the motive and intent of the defendant in publishing a libel traversable ; but matter of [*496] inducement, when necessary * to be proved in order to sustain the action, becomes material, and an issue may be raised thereon by answer.' Judgments, ^Ji'ivate statiites and conditions precedent. — The Code has also provided special rules, modifying the mode of making allegations on these subjects in a defensive pleading. The judgment of a court of special jurisdiction may be stated, in the answer as well as in a complaint, in general terms to have been duly given or made.' So, also, in pleading the performance of conditions precedent in a contract, it may be stated generally that the party dulj' performed the conditions.' These allegations, when set up in an answer, if new matter, are deemed controverted. On such an issue the defendant, or party pleading, if he desire to avail himself of the defense, is bound to establish on the trial the facts conferring jurisdiction, or the facts showing the performance of the condition precedent ; and the plaintiff', under such issue, is at liberty to disprove all or any of them by competent testimony. A private statute, or a right derived therefrom, is sufficiently pleaded by referring to such statute by its title and the day of its passage, and the court must thereupon take judicial notice of the same." No decision of note has been made under either of these statutes, so far as regards the pleadings on the part of the ' Buddington v. Daeis, G How. Pr. explanation given by Justice Har- 401. MS of that case, in iVies v. Fanning, ' Lewis V. Kendall, 6 How. Pr. 59 ; 9 id. 545, is doubtless correct. Sayles v. Wooden, 6 id. 84; Brown v. ^ Fry v. Bennett, 5 Sandf. 54. Orr.is, 6 id. 376 ; Buddinrjton v. Bazis, * Code, § 161. 6 id. 401. The case of Butler v. Wait- ' Id., § 102, worth, 9 id. 382, apparently approves * Id., g 163. a hypothetical justification. But the 582 THE ANSWER. [CII. V. [*497] defendant. The reader is * referred to what was said on tlie subject generally in the chapter on the complaint. ProjX'rty distrained for damage. — The Code provides that in an action to recover the possession of property distrained doing damage, an answer that the defendant or person by whose com- mand he acted was lawfully possessed of the real property upon which the distress was made, and that the property distrained was, at the time, doing damage thereon, shall be good, without setting forth the title to such property.' This is nothing more than a re-enactment of the statute relative to a plea by the defend- ant in such cases in an action of replevin.' The facts of the lawful possession of the real property by the defendant, and that the chattels distrained were doing damage, constitute new matter, which must be alleged by the defendant in his answer, in order to entitle him to give evidence thereof ; but such allegation may be in general terms, and the facts going to establish the title may be proved on the trial. In other actions of trespass, etc., if the defendant justifies under title, i-iglit of way, etc., he should, it seems, plead specially the facts going to establish the title, etc., in order to introduce evidence thereof on the trial. This is in accordance with the general rule in actions at law, that the plead- ings must show title. It was suflicient to state a seizure [*498] in fee simple in general terms, that *is, that the party " is seized in fee of a certain farm of land," etc. But in pleading a particular estate, such as an estate for life, for years, or at will, it was necessary to show the commencement of the estate, and the derivation of title from the last seizure in fee simple. 2. WJiat may ie alleged as new matter. — Having thus consid- ered what matters inust be alleged in the answer by the defendant, I shall next briefly notice what may be alleged in his defense, or not, as he may think proper. Under a general or special denial, as we have seen," no evidence can be given on the part of the defendant, except such as tends directly to disprove some material fact controverted in the com- plaint. This doctrine, very clearly and logically laid down in the ' Code, § 166. ' Ante, p. 473 et seq., marg p. ■' 2 E. S.'539, § 42, 3 Edm. St. 547. SEC. I II. J STATEMENT OF NEAV MATTER. 683 case of Benedict v. Seymour, cited sxipra^ agrees with most of the decisions on this point made since the Code, and is no doubt entirely correct. In the same case, however, the question was considered, whether it is admissible to set forth specially any defense which may be given in evidence under such a traverse, and the conclusion arrived at is, that every special defeiise con- sisting of matter which goes to disprove any material allegation in the complaint, is defective, and must be stricken out on motion.^ Whether this rule was ever strictl}' applicable [*499] to the theory of pleadings under the Code, * or not,, it seems to me clearly evident that since the late amend- ments it cannot and ought not to be rigidly applied. There can certainly be no reasonable objection to allow the defendant, with his general or specific denial, to set forth specially, as former-ly he might do with the general issue, either by notice or special plea, such defenses as duress, statute of frauds, illegality of considera- tion, payment, or any other defense not absolutely inconsisieiit with the denial, even though some of these defenses might properly be given in evidence under a mere traverse. A plea amounting to the general issue, it has been observed, was mere matter of form, not of substance, and as such, therefore, could be reached only by special demurrer. An example is given in an actioTi of trover, where the defendant pleads that the plaintiff consigned him the goods to sell, which he sold pursuant to the order of the plaintiff; this was held bad as amounting to the general issue;' but, being mere matter of form, it could not properly be reached by demurrer under the Code. The plaintiff cannot certainly, in any sense, be said to be " aggrieved " by such a defense, if it be matter really proper to be proved in bar of the action. In such case the answer apprises him of the exact point of the defense set up, in the shape of new matter. As the Code now stands, he is not required to controvert it by any reply, but the matter is deemed to be controverted, and the [*500] defendant must prove it. He may, therefore, I * think, properly allege it as new matter, with or v/ithout his general or specific denial, nor should such a defense be struck ' 6 How. Pr. 298. ^ 10 Jolins. 389. •^ 6 How. Pr. 307. 6S4 THE AKSWEE. [CII. V, out merely because it amounts to the general Issue. These views are fully sustained in the late case of Ilollenhech v. Clow^ in which Justice IIaeeis held an answer of such " new matter, constituting a defense^'' as might have been given in evidence under a general denial, to be good. He thought the test on the subject was, whether the matters stated in the answer consti- tute a defense within the meaning of the Code; not whether they might have been proved under some other form of pleading. I have already had occasion to consider this subject in a previous part of this chapter,'' and especially in regard to the pleading of mitigating circumstances in cases of libel and slander ; " and I have endeavored to show that the answer of the Code, in all cases, is substantially the equitable answer when used as a pure pleading, and not as a mere discovery of evidence, and that, therefore, the technical rules, governing special pleas in bar, are not strictly applicable to it ; but that many matters of partial defense, which could not before have been the subject of a plea, may, if the party choose, be set up in his answer, with a general or special denial, precisely as he might have done before under a notice [*C01] with the general issue,'' and precisely as it is *conceded now that he may set up the defense of recoupment as a partial defense in mitigation of damages.* The general rule testing the sufficiency of an answer in equity, is stated by the chancellor in Van Rensselaer v. Brice," to be, " that if the matter of an answer is relevant, that is, if it can have any influence whatever in the decision of the suit, either as to the subject-matter of the con- troversy, the particular relief to he given, or as to the costs, it is not impertinent." An answer in equity, confining itself to facts pertinent in opposition to the case made by the complainant's bill, was not irrelevant ; but if it traveled out of the bill to state facts not material in evidence, or scandalous, or otherwise impertinent, it would be corrected by expunging such matter on application to the court.' And the notice with the general issue, in a common- law action, performed a substantially similar office. Within these rules it was said, on a previous page,' that matter ' How. Pr. 393. " Willis v. Tnggard, 6 How. Pr. 433. " Ante, p]). 4.18, et sr ; Lieiiion r. Sc/iciicIc,2'J 'S.Y. Lattlii. V. McCirtji, 41 N. Y. lOT ; Peek 598, affirming-, 33 Barb. 9.] V. Broien, 2 Rolx 132; JTiel.Krilh' v. *//((/•;■(',< v. //f(»iH(OHy said defendants, were made by thein and one A B, jointly, etc. These and similar cases are cited by WooDEUFF, J., in Ketcham v. Zarega," in the ISTew York com- mon pleas, in which this subject is very accurately considered, and such conditional forms of expression are regarded as not vitiating the pleading, though the general rule, that hypothetical pleading is objectionable, is fully admitted. The answer in that ease alleged that the defendant, " further answering, denies that the said judg- ment, if so recovered, still stands in full force and effect, and in no way satisfied or annulled ;" and the answer was considered not ' See Arthur v. Broolcs, 14 Barb. S. '^ 1 Smitli's Com. PI. 55-1. C. 533, and cases s'jpra. 604 THE ANSWER. ICII. V. obnoxious to a cleraurrer because of this hypothetical form of expression. It is on\y for the purposes of the issue formed upon the new matter, says the coiirt, that tlie defendant must [*532] admit, or rather * that he is, by setting up the new matter, deemed to admit tlie truth of the allegations avoided thereby. The distinction, I apprehend, will be found to consist in this, that where the entire allegation, that is, the subject-matter of the defense, is hypothetically stated, the answer is bad, because it is not & jMsitive statement; but where a mere hypothetical or quali- fying expression is connected with a positive statement of fact by way of defense," such form of pleading is not objectionable, and, indeed, cannot be strictly called hypothetical pleading. Thus, it will be seen, at a glance, that there is a manifest difference in the proper signification of the two modes of expression, as, for example, after a denial in slander : " The defendant further says, that if he spoke the words alleged, etc., the same are true ; " and, " the de- fendant further says that the alleged words, etc., if the same were spoken (that is, admitting the same to have been spoken), are true." The former is a conditional allegation, based entirely upon the hypothesis of the speaking of the words, which is not con- ceded for the purpose of the answer ; and this is what may properly be called hypothetical pleading, which neither the old nor the new system sanctions. The latter, on the contrary, is a direct and positive assertion of a fact — the truth of the words — with a reser- vation no doubt of the question of having spoken them, but ['"".533] conceding the speaking for the purpose of such '" defense. It is nothing more than though the defendant had alleged that — reserving to himself the benefit, and still insisting upon the truth of his denial, yet admitting that he spoke them — the words are true. It may be added, that tmder the Code, which gi\es a defendant the benefit of as many separate defenses as he may have, such reservation, in any form or manner whatever, is entirely unnecessary. Perliaps, therefore, under a very strict rule of construction, such conditional or qualitying words might bo struck out as superfluous and redundant ; but I do not see how, ' As in Ketcham v. Zarega, and examples above cited on ante, marg. p. 531. SEC. III.J STATEMENT OF NEW MATTEE. G05 iu any light, they can be regarded as vitiating a pleading in point of snbstance.' Not only must tlie facts be unconditionally stated in the answer, but the rules of good pleading require that tliey should not be argumentatively stated ; ^ nor must mere legal propositions or conclusions of law be set forth,' nor the intentions of the parties ; nor, if such matters are stated on the other side, should they be answered by the defendant.* The answer must either deny the allegations in the complaint or state new matter. It is not sufficient to admit the propositions set forth in the complaint, and then, by way of answer, set [*53i] up and * insist upon the legal consequences which the defendant claims result from these admitted propositions of fact. This practice, though proper in equity, it has been held, is inadmissible under the Code.' An answer must take issue upon a material fact in the com- plaint, otherwise it is improperly upon the record." But where one material allegation is put in issue and remains to be estab- lished, though nothing else in the complaint be denied, the answer is good, and the plaintiff will be put to his proof.' In Thumi v. Walratk,' it was held, at special term, that an answer, assuming to go to the whole of a single cause of action, but containing facts which constitute a defense to a part only, is bad on demurrer; and this, too, although the defendant had put in another and complete answer to the whole complaint. The action was to recover thirty-two acres of land, and the defective answer set up a defense only to a portion of the land. This doctrine was again asserted in the case of Willis v. Taggard' and it is in analogy with the former practice of pleading at law.'" In the latter case, which allowed a partial defense by way of recoupment to be pleaded, it was said, in the endeavor to [*535] reconcile with strict common law * principles this inno- ' [Taylor v. Eicliards, 9 Bosw. 679 ; Mier v, Cnrtledge, 7 Barb. 80 ; and, see McCurmick x. Pickering, 4 N.Y. 376; preceding chapter on 27ie (7o»)^.'ai»<. Dnran v. Dinsmore, 33 Barb. 86, 20 * Ootihl v. ]\'ii/iams, 9 How. Pr. 51. How. 503 ; but, see, Leims v. Acker, 11 ^ Lane v. Gilbert, 9 How. Pr. 150. id. 164; Hamilton v. Hough, 13 id. ' Genesee Mat. las. Co. v. Moynihen, 14.J 5 How. Pr. 321. ••' Arthur v. Brooks, 14 Barb. 533. « 6 How. Pr. 196, 1 C. R. N. S. 316. - Gould V. Williams, 9 How. Pr. 51 ; « 6 How. Pr. 433. Seeley v. Hngle, 17 Barb. 537. >» 6 Hill, 431, 1 Denio, 347, 1 Cbitty's ■> Sarton v. .Saeket, 3 How. Pr. 358 ; PI. 510. 606 THE ANSWER. [CH. V. vation upon common law pleadings, that full effect migiit be given to the Code by holding that an answer, claiming to set np a full defense and falling short of it, is demurrable ; but, if the answer claims no more than the facts which it affirms will justify, it is good. I cannot see that any such distinction can be useful in its application to the matter of an answer as we now understand its uses and character. A partial defense, under the Code, in all cases may be pleaded as such, as well as a full defense in bar.' Beparate defenses, and how stated. — The Code provides that: "The defendant may set forth, by answer, as many defenses and counter-claims as he may liave, whether they be such as have been heretofore denominated legal, or equitable, or both. They must each be separately stated, and refer to the causes of action which they are intended to answer, in such manner that they may be intel- ligibly distinguished." '' The nature of the defenses which may be separately pleaded has been already, in part, considered. They are, first, a general or specific denial ; second, new matter in avoidance ; third, counter- claim. They may be legal, or equitable defenses, or both ; and they should not be of such a nature that if one is proved to be true the other must necessarily be false.^ [*536] They must also be separately stated. This is a * very important and essential feature in the manner of stating a defense. The provision in the Code is conclusive to show that defenses must be single, that is, not consisting of a single allegation, or a single material fact, but of a single matter, which, as a whole, and complete in itself, will, if proved, form an entire defense to so much of the complaint as it assumes to answer.' [And it must be complete in itself, without reference to another defense;" but, in order to avoid repetition, allegations of facts whicli form a part of several defenses may be once stated, and may thereafter be incorporated in each defense by appropriate words of reference, instead of repeating them at length in each ; ° but such reference ' Bush V. Prosser, 1 Kern. 347, and 230 ; Loosey v. Orser, 4 Bosw. 392 ; Bald- Bee ante, pp. 457, 458, marg. pp. win v. U. S. Tel. Co., 6 Abb. X. S. 406, '' Code, i; 150, and see Sup. Ct„ Rule 25. 1 Abb. Forms and PI. 117, note 3; see ' See ante, pp. 530-524, innrg. pp. ante, marg. p. 197, as to complaint. ' Willis V. Taggard, 6 How. Pr. 433. « Xaila. etc., v. Lee, 2 Bosw. 694, 7 " Xeiiia Branch Bunk V. Lee, 2 Bosw. Abb. 373 ; Ai/rauh v. Ghainberlaiii, 33 694, 7 Abb. 373; A)/ res v. CovUl, 18 Barb. 230; Loomis t. Sieick, 3 Wend. Barb. 261 ; Ritchie v. Garrison, 10 Abb. 205 ; 1 Abb. Forms and PI. 117, note 3. 246 ; AyrauU v. Chamberlain, 33 Barb. See ante, marg. p. 197, as to complaint SEC. III.] STATEMENT OF NEW MATTER. 607 must be clearly and specifically made.'] And, according to Justice Selden, there can be no proper mode of framing an answer in a common-law action without distinguishing each separate defense by at least some appropriate commencement, if not conclusion, as, for example, " and for a further defense," etc.," and this is fully approved by Justice Welles, in Lippenoott v. Goodioiil.' In the leading case of Boyce v. Brown,* several times above cited, it was said, on appeal to the supreme court, by Justice Hand: " As I understand section 150, it is a statutory inhibition against duplicity in stating two defenses together. Each defense, or ground of defense, must be separately stated ; and this, I think, applies to more than one defense to the same cause of action, as well as to dift'erent defenses to diflferent causes of action, so that under the Code, as amended by act of April 11, 184:9, it [*5^7] may be doubtful whether what was * matter of form before, requiring a special demurrer, is not now matter of substance," etc." The separate grounds of defense, separately stated as prescribed in section 150, take the place of separate pleas." But it is said, in Bridge v. Bayson/ that though each statement intended as a defense must be complete in itself, yet the Code does not require any formal commencement or conclusion of such statement. There is nothing, however, in the Code to forbid this ; and the practice, recommended in Bippincott v. Goodwin , and Benedict V. Seymour, namely, that the pleader indicate distinctly by fit and appropriate words where his statement of defense commences and where it concludes is, doubtless, the most safe and prudent. Besides, the 25th rule of the court requires that each defense shall be not only separately stated hvA plainly numbered." [The same defense should not be stated in several dift'erent ways," although the court has a discretion in compelling a party to elect.'"] And see, further, as to separate statement of counter-claim, post, section 4 of this chapter. ' Simmons v. FairchUd, 43 Barb. 404, * CcVb v. Frazee. per Gkidlet, J., 4 1 Abb. Forms and PI. 117, note 3 ; see How. Pr. 413. ante, marg. j). 197. ■" 5 Sandf. 310. ^ Benedittv. Seymour, Q'Row.'Pv.ZQ2. * See mode of raising tlie objection ' 8 How. Pr. 343. in such cases, post, p. .539. * 7 Barb. S. C. 80, 3 How. Pr. 391. » See ante marg. p. 199. ' See, on this point, Fry v. Bennett, '" Kerr v. Hays, 35 N. Y. 331. 1 Code K. N. S. 353, and post, cb. 7, §-3. 608 THE ANmVEE. [CH. V. It is held, however, in Otis v. Jioss,' that the section of the Code, requiring several defenses to be separately stated, relates to distinct affirmative defenses — new matter — and not to mere denials of the allegations in the complaint. The answer, [*538] it * was said, does not contain a double defense, because it denies two facts, both of which are necessary to make out a good cause of action ; and the reason given was, tliat otherwise an answer could never deny more than one material allegation of the complaint, and would of necessity admit all the rest ; or the defense, although consisting of bald denials of allegations on the other side, would call for as many separate answers as there are material allegations to be denied. The court was, therefore, of the opinion that all the material facts constituting one cause of action, however numerous those facts are, may be denied in one answer, without separating such denials. The defenses must not only be separately stated but they must " refer to the causes of action which tliey are intended to answer in such a manner that they may be intelligibly distinguished." That is to say, if the complaint contains several distinct causes of action, these are to be separately stated, in substance similar to the manner of stating the counts in a declaration," and each cause of action must be separately answered. If the defendant have two or more defenses to any one cause of action, he may set them forth, but each defense must point out specifically the cause of action to which it is designed to be an answer, as, for example, " and as to the cause of action secondly set forth in the plaintiff's complaint, the defendant, for answer, further says," etc., [*539] * or in some other way to distinguish it intelligibly. The burden of analyzing the defense, as lias been well re- marked, is not to be thrown on the court at the trial, nor is the plaintiff bound to take notice of it at his peril. If, instead of observing these rules prescribed for the manner of the statement of a defense, tlie defendant mingles together two or more state- ments, each of which would be a sufficient defense, if separately seated, the court will, on motion, strike out all the allegations not necessary to one ; ° [and tlie party moving may elect which he will ' 8 How. Pr. 193. ' Benedict v. Seymour, 6 How. Pr. ' Ante, pp. 344-350, marg. pp. 301. SBC. III.] STATEMENT OF NEW MATTER. 609 strike out, altliougk the count left be demi^rrable,'] or perhaps set aside the answer." And similar consequences will result from set- ting up separately two or more defenses to a complaint containing several distinct causes of action, without properly distinguishing as to which cause each defense is intended to' apply. Perhaps, however, in such a case, the proper way would be for the plain- tiff to move that the defendant be compelled to make his answer more definite and certain by amendment.^ [There are a few eases where, on account of the prolixity which would otherwise be necessary, several causes of action or defenses may be stated in one.*] Joint or iseparate answer. — If there are two or more defend- ants, each defendant may put in a separate answer in cases where, according to section 274, amended Code, a several judgment may be proper. In equity, two or more persons might join in the same answer; and where their interests were the same, [*540] and they appeared by the same solicitor, they * ought to do so, unless some good reason existed for answering separately.' When a joint fiduciary capacity exists; a joint answer should be adopted. But the rule does not apply where the joint parties are liable to account, and incur responsibility, as in the case of executors and trustees." When the interests of the defendants are not the same, they should answer separately. Where the defendants, if liable at all, are all liable as joint contractors, the answer, as in equity cases, should be joint.'' If the defendants are severally liable, each may properly appear separately, and answer ; as, for example, in case the defendants hold different relations to the plaintiffs, sach as the maker and indorser of a promissory note, etc. So, also, where the defense relied on is a mere personal discharge, such as bankruptcy of one ' Kerr v. Hayes, 35 N. Y. 331 ; Wal- the allegations not necessary or proper ler V. Rusken, 12 How. 28 ; Durman v. to one defense or cause of action. Milam, 4 Abb. 202 ; Henderson v. N. C. M.] Jackson, 2 Sweeny, 324, 330. ■• Lomjworthy v. Knapp, 4 Abb. ] 15. 2 Blanchard -^.Strait, 8 How. Pr. 83 ; =1 Barb. Ch. Pr. 158. Sipperly et al. v. Troy and Boston R. " Id. 157. R. Co., 6 id. 83. [This could not, we ' " Each defendant is at liberty to think, be done. N. C. M.] use such plea as he may think proper ^ Wood V. Anthony, 9 How. Pr. 78 ; for his defense, and they may either and, see, on this subject, post, ch. 7, join in the same plea or sever at their on the demurrer. [The correct practice discretion." Sucli was the rule at undoubtedly, is to move to strike out all common law. Staph. PI. 257. 77 610 THE ANSWER. [CH. V. joint contractor, infancy, etc/ In actions for a wrong or injuiy, as trespass, slander, assault and battery, etc., the plaintiff is allowed to recover against one or more of several defendants, and a several judgment is always proper. Each of the defendants, therefore, may answer severally, and hj the same or by different attorneys. Where, however, two defendants answer separately by the same attorney, and verdict and judgment are [*64:1] given in * their favor, but one bill of costs will be allowed.^ And where two defendants answer separately, by different attorneys, one of whom is a clerk in the office of the other,' or who are partners in business,'' but one bill of costs will be allowed ; otherwise, if not partners.^ If one or more of the defendants fail to answer, in cases where a several judgment may be proper, the court will render judg- ment against them, leaving the issues raised by the answer of the defendant or defendants who appear, to be tried." But an answer put in by one of the several defendants must be material on the question of the plaintiff's right to recover ; it cannot set up equities to be adjusted between him and a co-defendant, pursuant to section 274 of the Code.' But the claims of one defendant may be disputed by either of his co-defendants, as well as the plaintiff; and it is no objection to this that the different defend- ants, if they all appear, do not serve their answers on each other ; as in Bogardus v. JParlcer' where it was held that the claims of different defendants in a partition suit might be tried and [*542] adjusted, if they * involve interests in, or liens on, the property sought to be partitioned. And in rendering a judgment under this section, which shall determine the rights of the plaintiffs or defendants, as between themselves, the defendant claiming such judgment, as against a co-defendant, must actually ' 4 How. Pr. 272, 1 Chit. PL 35. ' Woodworth v. Bellows and otliers, 4 '' Tracy v. Stone, 4 How. Pr. 104. How. Pr. 24, per Welles, J. [Moak's ' 6 How. Pr. 404. note to Clarke's Ch. p. 8, ed. 1869. In ■* 6 How. Pr. 9. addition to the cases there cited (3 ' 5 id. 386. The N. Y. superior Keyes, 241, 9 Paige, 539, Oarke's Gh. court allowed separate bills of costs 595, 2 Rob. 676). see 2 Barb. Ch. Pr. against two defendants defending by 180; Bank v. Buiitir, 4Bosw. 646, Eq. the same attorney (4 Sandf, 641); but it Draftsman, 823, )H("r/- P-, and cases was held by the same court, in another cited in Am. note ; Kai/ v. Whitaker, case, that but one bill could be allowed 44 N. Y. 565, post, 769, Tnarg. p.] in favor of two defendants. 3 Sandf. * 7 How. Pr. 305. See authorities 760. cited in last note. « Code, § 274. SEC. III.J STATEMENT OP NEW MATTER. 611 appear as a litigating party in court.' It seems to be proper, under the Code, for a defendant to join, with a sufficient answer barring the plaintiff's right to recover, an answer containing facts, which, if proved, will authorize the court to render judgment that he be subrogated in place of the plaintiff, or such other judgment as will determine the equities between him and his co-defendant. Such answer, however, should not be allowed, if calculated to prejudice or delay the plaintiff in collecting his demand ; and it would seeui to be but just that in such case the court should require the truth of the defense, as against the plaintiif', to be vei-ified by affidavit. There seem to be cases, too, in which it is indispensable that the defendant, seeking affirmative relief against another defendant, or setting uj^ a conflicting claim upon grounds not brought in issue by the complaint itself, should file his cross-complaint to enable the adverse defendant to litigate the points in controversy between them. At all events, such affirmative relief, it has been held,'' will not be adjudged against a defendant who has [*543] * not answered in the action where such cross-complaint or answer has not been served on him, and he has not been apprised that it will be demanded. And generally all matters of defense set up should be true. Under the old system of pleading, it was very quaintly, but cor- rectly, remarked, that " truth is not properly a quality of plead- ing," ° and, though a cardinal rule was that the pleadings ought to be true, yet, in general, there was no way of enforcing this rule, because, regularly, there was no proper way of proving the false- hood of an allegation till issue had been taken and trial had upon it.' The science of pleading, it was said, had no rules whereby truth could be ascertained.' The original Code attempted to remedy this defect, in part, by requiring a verification to all pleadings, and thus bringing down the allegations to the compass of ordinary probability, if not of absolute truth. The verifica- tion being now optional with the plaintiff, a false or sham answer ' Norbury v. Seely, 4 How. Pr. 73. ' Steph. on PI. 96. ^ See this subject discussed in Tracy ■* Steph. on PI. 441. V. N. T. Steam Faucet Co., 1 Smith's ' Id. Com. PI. 350. {Bank v. Hunter, 4 Bosw. 646.] 612 THE ANSWER. [OH. V. may, of course, still be put in. But the Code has provided a way to enforce the rule requiring truth in pleading, by arming the court with power to strike out such sham answer and render judgment in a summary manner, on motion, although this remedy seems to be biit partial, inasmuch as it is held not to extend to the striking out of an answer containing a mere denial.' [*544] * SECTION IV. COTTNTBIl-OLAIM. The word " counter-claim " is introduced into the Code by the amendments of 1852. As the section now stands'" the answer must contain, besides a general or specific denial of the allegations which the defendant intends to controvert : "2d. A statement of any new matter constituting a defense or counter-claim^ in ordinary and concise language, without repeti- tion." Besides this provision, the amendments of 1852 introduced into the Code the following new definition : "The counter-claim mentioned in the last section must be one existing in favor of a defendant, and against a plaintiff, between whom a several judgment might be had in the action, and arising out of one of the following causes of action : " 1. A cause of action arising out of the contract or transaction set forth in the complaint as the foundation of the plaintiff's claim, or connected with the subject of the action. •' 2. In an action arising on contract, any other cause of action arising also on contract, and existing at the commencement of the action." The latter subdivision evidently embraces that class of [*545] defenses to an action usually denominated *set-oflF. The former, other cases of cross-demand between the parties growing out of the siibject-matter of the suit. What is counter-claim. — It maybe important to know the exact definition of the term " counter-claim," as used in the Code, and what species of defenses it was intended to embrace ; for, as will be noticed more at large in the next chapter, it is only in ease ' Post, S 6 of thia chapter. ^ The word " counter-claim " is sub- ii Code, § 149. stituted in place of " set-off." SEC. IV.J COTJWTEE-OLAIM. 613 the defense set up is a " counter-claim " that a reply is now necessary. It might, perhaps, in the absence of all judicial con- struction on this new provision of the Code, be difficult to define correctly and with precision the exact legal deiinition of the term "counter-claim." It, undoubtedly, embraces what was formerly known as set-off, and, also, recoupment of damages in those cases where such matter of recoupment would have been the subject of a cross-action.' But it has also, evidently, a wider and more extended signification ; and, embracing matters which heretofore have been classed as purely equitable, and could not have been interposed to an action at law, or directly in a suit in equity, it is intended to apply to every defense which heretofore would have been the subject of a cross-suit, equitable as well as legal, such not only as go to defeat the plaintiff's action merely, but such as ask affirmative relief for the defendant, limited only, cases other than a set-off on contract, by the restriction that such defense must arise out of, or be connected with the subject of the plaintiif 's demand. [*546j * It may be proper here to observe that the portion of the Code above quoted, relative to the " counter-claim," is identical with the provisions on that subject contained in the report of the commissioners to the legislature of 1850, which was printed, bat never acted on by that body." In order to elucidate more clearly the nature of the counter-claim, as intended by the commissioners, I quote the following from their explanatory note to the section in question : "The statute of set-oflp was the first innovation upon the common law. That, however, was quite limited in its operation. Of late years the courts have let in a new set of cross-demands under the name of recoupment We propose in this section to open the door still wider, and to admit many cross demands now excluded. Fur- ther experience may show that the door should be open wider still. " The first subdivision of this section is intended to remove a doubt, which has been sometimes expressed, whether affirmative relief can be given upon an answer setting up a defense which liere- tofore would have been accounted equitable only. For example, in the case of an action to dispossess an occupant of land ; the defend- ant claims to occupy under a contrast to purchase, and asks on his part for a judgment that the plaintiff give him a conveyance. It i • ^Leavenworth v. Parker, 52 Barb. '^ See Report, §645, subd. 2, and i^ (546. 132; Clinton v. Eddy, 1 Lana. 61. 614 THE ANSWER. [CH. V. the intention of the Code that the whole controversy between the parties should be settled in one action, and that either plaintiff or defendant should have such rulief as the nature of the case requires. It is as easy to do this as it is to decide upon what was considered a mere equitable defense to a legal demand, and there is no difficulty in either. " Suppose an action upon a written agreement, to recover damages for not performing it. The defendant answers that [*547] * the writing does not express the intention of the parties, and that he did perform it according to the real agreement between them. Is such a defense admissible under the Code ? That question involves another, which is this : Is the agreement by the law of the land binding upon the defendant as 'it stands, or is it not ? Now, if it be not binding, that is, if, before the Code, he could by any form of action get rid of it, he can do so now in the action prosecuted under the Code. The effect of the Code is to open the door to remedies without disturbing rights. It has not changed the parties. It has simplified and shortened their remedies." ' From these remarks of the commissioners, we gain a tolerably clear idea of the nature and extent of the " counter-claim," as used in the Code. It is intended to embrace : First. Matters which, by the statute, might heretofore have been interposed by way of set-off in an action on contract, and also, in such action, any other damages, liquidated or unliquidated, accrued at the commencement of the action, arising on a contract between the parties to the action, or assigned to the defendant before the action was commenced. Second. Matters which heretofore might have been given in evidence in recoupment of damages, and which would have been the subject of a cross-action by the defendant against the plaintiff. Third. Any other matter of defense, legal or equitable, wherebj', by " the law of the land," the defendant would [*54:8] have been enabled, in any form of * action, legal or equitable, not only to defeat the plaintiff's claim, but to have obtained affirmative relief in respect to some matter grow- ing out of or connected with such claim ; and, Fourth. Any matter arising out of, or connected with, the subject of the plaintiff's action, which, though not a complete defense thereto, might have been the ground of another action by the defendant against the plaintiff for damages or specific relief. ' Report of the commissioners, complete, pp. 267, 268. SEC. IV.] COUNTER-CLAIM. 615 The view taken by tlie courts of this provision of the Code ' is not substantially difi'erent from the above. In Silliman v. Eddy' J-ustice Ceippen thinks a counter-claim must be construed to mean " an opposition claim, or demand of something due ; a de- mand of something which of right belongs to the defendant in' opposition to the right of the plaintiff." In Gage v. Angell' Justice Allen regards it as "sufficiently comprehensive to embrace any claim or demand of any right, or of any amount due or supposed to be due, adverse or in opposition [*54:9] * to the claim or demand of the plaintiff. All claims and demands of the defendant against the plaintiff', in an action which, if allowed, will reduce or overturn the plaintiff's claim, may be said to be counter-claims, that is, adverse to the plaintiff'. "Whether they may be set up in defense of the action depends upon the question whether they came within the 150th section, which limits and defines the counter-claims which may be thus set up." In Kneedler v. Steenburgh,* Justice Hand con- ' The exact meaning of the term Code." And Judge Creppbh" doubts " counter-claim," as used in the Code, " whether a more perplexing, unde- seems to have baffled judicial ingenu- finable, impracticable combination of ity itself ; and some of the "judges "words could have been joined together have not hesitated to ackno wledge the in the English language than those fact in no very complimentary terms selected in this particular by the to the authors of this provision. Judge modern reformers who claim to stand Bakculo thinks it unnecessary " to at- as sponsors to the Code." See Rosaoe tempt to define the precise meaning of v. Mainon , 7 How. 133 ; Billiman v. this unfortunate compound which has Eddy, 8 id. 133. been pressed by our modern Solons ' 8 How. Pr. 188. into the service of the fourth, and it is '8 How. Pr. 335. to be hoped the last, edition of the * In the following extract from the opinion in this case, Judge Hand traces the derivation and use of the term '^ counter-claim :" '^The meaning of the word ^ counter-claim ' has already been the subject of some discussion. Not being a word of art, nor found in our dictionaries, its definition, as used in sections 149 and 150 of the Code, is not perfectly clear. It does not, however, owe its paternity to the Code. Although seldom used, it has been occasionally by the profession. (By Williams and Patterson, JJ., in Mee v. Tomlinsnn, 4 Ad. and B. 363 ; Wilde, C. J., in Callendar v. Hmoard, 10 C. B. 303; Sedg. on Damages, ch. 17.) Like some other rather inelegant compounds, as * counter-demand ' (6 Ves. 141), ' counter- letter' (11 Pet. 351), 'counter-paper' and 'counter-security' (Chit, on Bills, 711), 'coun- ter-action' (5 Exch. 356), it may be sometimes met with in our law books ; but most generally, before the Code, I believe, it had reference to a set-o£E. The word ' claim ' has been considered a 'word of art,' and long since was defined by Ch. J. Dyer to be ' a challenge by a man of the property or ownership of a thing which he has not in possession, but which is wrougfuUy detained from him.' (Plowd. 359.) And its popu- lar signification and use:(\fr-ould hardly include recoitpme»£ in every case. Recoupment is not always a subsisting clavni.. Suppose a disseisor erects permanent improvements ; when called upon to respond in damages, he may recoup what he has so expended . 616 THE ANSWER. [CH. V, siders the term as having a more restricted meaning, and that the counter-claim of the Code must be in itself a cause of action, or Gross-demand. " The defendant," he says, " can have no claim, properly speaking, arising solely out of the plain tiif's cause of action. And where the defense rests in the mere right of deduc- tion or diminution of the plain tiif's damages, the law before gave and enforced that right. The claim of the plaintiff may now be met l)y inde]}endent causes of action arising upon the same or another contract ; but that is quite another thing." In the application of these principles, Judge Hand thinks that in a suit by a vendor against his vendee for purchase-money, when the vendee sets up in defense, and claims to recover damages for a breach of warranty of the thing sold, this is a counter-claim within the meaning of the Code ; but that where a vendee, who has paid nothing in an action for the purchase-money, [*550] seeks merely to * reduce the amount of the recovery by showing a partial failure of the consideration, or even defeat a recovery by showing a total failure, such a defense, inas- much as it is not properly a " cause of action," and does not "arise out of a cause of action," cannot, in a strict sense, be deemed a counter-claim.' And in a recent case in the !N. T. superior court," the counter-claim is considered as relating only to such causes of action as exist against the plain- [*551] tiif on the * record, and might, in their nature, be the basis of an action against him at the suit of a defend- ant. Thus a set-oif against an assignor, before notice of assign- ment, is defensive matter merely, and not strictly a counter-claim in an action by the assignee. The tests of a counter-claim, therefore, would seem to be, that it must be matter which, in itself, would have been the subject of an independent suit ; or matter looking to affirmative relief., either in partial mitigation, or total extinguishment of the plain- tiff's claim. It is a claim set up by the defendant counter to the 1 10 How. Pr. 67. '^ Gleaaon v. Moen, 3 Deur, 639. {Cnvlter's Case, 5 Co. 131; 8 Vin. 556 ; Sedg. on Damages, oh. 17; 3 R. S. 311.) And yet he has no cause of action therefor. Its early use was in this sense ; but I do not under- stand this would be a counter-claim without the Code. Indeed, the examples of recoupment, given by Viner, are under the head of ' Discount.' A counter-claim must be a cause of action — a ' cross-demand,' " etc., etc. SEC. IT.J COUNTER-CLAIM. 617 claim of the plaintiff; a claim for which the defendant might have hrought a suit against the plaintiff, -whether such claim be such as heretofore was denominated legal or equitable, or whether its results be to affect the plaintiff's demand, or to establish an independent demand against him. Matter alleged by way of defense, not being in itself a valid cause of action, or looking to affirmative relief, is not a counter-claim, within the meaning of the Code, and requires no reply. [Where the facts set up in an answer may operate as a payment or defense^ or by rendering an account necessary, by way of a counter-claim, the answer will be construed most strongly against the pleader and be held to interpose a defense and not a counter- claim.' If, however, the facts be set up and the defendant ask by the answer to recoup to the extent of his claim, such plea will be held to be a counter-claim."] In the further discussion of the subject, I shall consider the counter-claim with reference to particular classes of defenses, and examine each separately, in connection with the principal decisions under the Code relating thereto, in the following order: 1st. Set-off. 2d. Recoupment. 3d. Other suijects of' cross action and for specific relief. [*552] *In respect to the set-off, or a cause of action arising on contract, it is to be observed that the demand must exist at the time of the commencement of the action. This is in accordance with the rule existing before the Code.^ But in other respects the Code has enlarged the privilege of set-off beyond what the statute permitted. Thus, by reference to the statute of set-off, it will be seen that a demand, to be set-ofij must be not only one arising upon judgment or contract, but must be "a demand for real estate sold, or for personal proiDerty sold, or for money paid, or services done, or if it be not such a demand, the amount must he liquidated, or be capable of being asceiialned iy calculation ; " and it could be allowed only in "actions founded upon demands which could themselves be the subject of set-off according to law." ' ' Bates V. Bosekrans, 33 How. 98, aiBrmed by Ct. of Ajjpeals, 16 id. 576, affirmed, 37 N. Y. 409, 4 Abb. N. S. 276 ; note. Dresser y. Barton, 3 Alb. L. J. 18, Ct. = 3 Johns. 145, 9 id. 323, 6 Hill, 10, 3 Appeals. B. S. 354, § 18, subd. 4, 3 Bdm. St. 365 ^ Lemon v. Trull. 13 How. 348; * 3 R. S. 354, g 18,3 Edm. St. 365. 78 618 THE ANSWER. [CH. V. [A claim which is a valid defense may be merged in a judg- ment and the party holding it be precluded from using it for the reason that the judgment was rendered at too late a day.'] "When the suit was ujjon an unliquidated demand, as a bond of indemnity, no set-off was allowed." There could be no set-off for a landlord's breach of covenant or agreement in liis lease ; the remedy being by cross-action.' Though the tenant, it seems, might recoup damages for a breach of an agreement by the land- lord to repair." A set-off was not admissible in an action on contract for a breach of warranty.' And, generally, in all [*553] cases where *the damages were uncertain or unliquidated, except for real estate or personal property sold, or money paid, or services done, no set-off could be allowed." [The receiver of an insolvent insurance company has no right to set off a demand in favor of the company, becoming due after his appoint- ment, against a claim held against the company, by a creditor, at the time of the appointment, and then due.'] In equity, in suits for the payment or recovery of money, set- offs were also allowed in the same manner and with like effect as in actions at law.' And though before the statute it was held that a cross-bill was necessary in ordej to enable the defendant to avail himself of a set-off in chancery," yet, under the statute, the defendant was allowed to set up his statement of set-off in his answer, as was done by notice under the general issue in a suit at law, and litigate it in the same suit." But to entitle a defendant, in eqaity as well as at law, to set off a demand not liquidated by judgment or decree, he must have been the owner of such demand at the time of the commencement of the suit against him ; and even where the claim in suit was a bond payable in installments, the defendant in equity could not set off' a demand which became due to him from the plaintiff, subsequent to the commencement of the suit, against an installment upon the bond which became payable after the right of set-oft' accrued." In such case, how- 1 Lowell V. Lanii, 33 Barb. 393; Bdw- « 3 Johns. 150. zillo V. Levy, Livingston's Jud. Opin- ' Pardo v. Osgood, 2 Abb. N. S. 365^ ions 33-35 ; but see Kelsey v. Bradbury, 367-373. 12 N. Y. Leg. Obs. 232. » 2 R. S. 174, § 40, 2 Edm. St. 180. ! 1 Sandf. 254. » Troup v. Haight, Hopk. 270. 8 12 Wend. 529, 15 id. 559. " Chapman v. MoUnson, 6 Paige, 627. " 7 Hill, 53, 2 Comst. 283. " Knapp v. Burnham, 11 Paige, 330 » 11 Wend. 584. SEC. iv.J countee-claim;. 619 ever, if the plaintiff was insolvent, so that the set-off could not be recovered against him by an ordinary suit at law, or if [*554] there was any other ground for equitable relief, * the defendant had a remedy by filing a cross-Mil, showing therein the necessity of a set-off against the installment then due.' We shall presently notice how far this principle is applicable now. The Code permits a set-off under the name of " counter-claim " in all these various cases. The defendant may set off in all cases, " in an action arising on contract, ant/ other cause of action also arising on contract^'' no matter whether it be liquidated or unliquidated, whether it be damages for breach of warranty, or any other contract, and no matter what the nature of the con- tract be on which the plaintiff seeks to recover, whether for the breach of a bond of indemnity, or any other unliquidated demand. This was so held in the case of Beardsley v. Stover," in which an answer to a complaint for unliquidated damages for breach of a special agreement was allowed to be amended by alleging a set- off. And matter as set-off, arising on contract, which heretofore could have been liquidated only by a suit in equity, may now be interposed as a counter-claim to a purely legal cause of action. Thus, in Gage v. Angell,^ in an action on a promissory note, the defendant was allowed to set up and claim in his answer a balance due him upon an unliquidated and unsettled partnership account between himself and the plaintiff, the partnership having [*555] been dissolved prior to the action. The inconvenience *and possible delay to the plaintiff, in compelling him to await the result of a final accounting in a complicated partnership busi- ness, was urged against allowing such a defense ; but the court held that the claim of the defendant strictly arose out of contract, namely, the contract of partnership, and, as the act of the legis- lature embraced all claims of this character, whether legal or equitable, such a defense could not be excluded." But the Code does not allow a set-off on contract in an action for a wrong, and ' Kna/pp V. Burnham, 11 Paige, 330. a suit upon a note the defendant can- * 8 How. Pr. 294. not set up that the parties have been ' 8 How. Pr. 385. partners and that the firm owed him, '' But this doctrine is disapproved in unless he also alleged a. settlement, or a recent case (now in the hands of the insolvency, etc., or something else es- reporter), at a general term in the tablishing a peculiar equity. ith district, in which it is held that in b20 THE ANSWER. [CH. V. the rule in that respect remains as it stood before.' So, too, it is presumed, the other provisions of the Eevised Statutes, relative to set-offs, are not affected by the Code, namely, that the set-off must be due to the defendant in his own right, either as original creditor or assignee, and that, if there be several defendants, the demands set-off must be due to them all jointly (or, by the Code, such of them as may be entitled to a several judgment) ; and, if the plaintiff be a trustee, so much of the demand existing against those whom the plaintiff represents, or for whose benefit the actio.n is brought, may be set off as will satisfy the plaintiff's debt, etc., etc." By the first paragraph of the section under considera- [*556] tion, the counter-claim must be one "existing *in favor of a defendant, and against a plaintiff, between whom a several judgment might be had in the action." This introduces a very important change in the law which is worthy of particular notice. Under the former system courts of equity, following the law, did not allow a set-off of a joint debt against a separate debt, or, conversely, of a separate debt against a joint debt, that is to say, a set-off of debts accruing in different rights, was not allowed.' But special circumstances sometimes created an equity which would justify this ; as, for example, a joint debt might be set off against a separate debt, where a clear series of transactions established the fact that there was a joint credit given on account of the separate debt.* It is held, however, under the Code, that a set-off is allowable in all cases where a several judgment is proper. Any two defendants, or any number of defendants, jointly and severally liable, may set oft' his or their individual claims against the demand of the plaintiffs. This was so adjudi- cated in Pwrsons and WaUfi v. NasKs executors and others," in ' See McGraney v. Alden, 46 Barb. v. Oldfield, 4 Term R. 123 ; Chaves v. 272. Woodbury, 4 Hil] , 559 ; South v. Tanner, « 2 R. a. (3d ed.) 450, § 39. See, also, 2 Taunt. 254; WUliams v. Allen, 7 § 112, Code. Cow. 316 ; Scott v. Spears, 9 Cush. 504 ; 3 3 Story's Eq. Jur., § 1436. Mtinn v. Mechir„!rs, 1 Peters' U. S. nd., 5 Cranch, 34. 73^; Carte.r v. Hope, 10 Barb. 180; s 8 How. Pr, 454 [Taylor v. Root, 4 Read v. Jaudon, 35 How. 303. But see Keyes, 335 ; Brirjgs v. Vose, 20 Barb. Mynders v. Snook, 1 Lans. 488 ; Walsh 477, 15 N, Y. 471 ; Ifewall v. Salmon, v. Ostrander, 22 Wend. 178 ; Campbell 22 Barb. 647 ; Schubert v. Harteau, 34 v. Oenet, 2 Hilt. 290 ; Cummings v. id. 447 ; Perry v. Chester, 12 Abb. N. S. Morris, 25 N. Y. 685 ; Hess v. Fox, 10 131; Leiois v. Acker. 11 How. 163; ^ei\A.iS JRawson v. Raivson, 105 Mass. 214. 8E0. IV.] COTTNTEE-CLAIM. 623 being made to secure the payment of the price, and then received part of such debts himself, and that defendant joined in making the note, relying on the sale and that plaintiff would allow E,. to receive the debts. Held a good plea.'] [*658] * The jurisdiction of the court extends to equitable as well as legal ofi-sets.^ But an equitable set-off miist be such an equity as can be enforced by judicial action ; not one aris- ing merely from moral considerations.' The right to set oflF a demand against an assignee has not been affected by the Code. Section 112 was intended to preserve the rights of defendants, in cases where the suit is prosecuted in the name of the assignee, in the same manner as formerly. So, also, the rights of an assignee are to be protected from set-offs against the assignor after notice, etc., as under the former practice.' But in the case of Gl-eason v. Moen^ above cited, in the Xew York sxiperior court, it is held that a defense existing against an assignor before notice of assignment, under section 112, is not strictly a counter-claim, although it may be a valid defense." The counter-claim, defined by the Code, was thought to embrace only causes of action existing against the plaintiff on the record, and on which, under the old system, an action at law, or a bill in equity, could have been maintained against him at the [*559] suit *of the defendant, according as the matter was one of legal or equitable cognizance. Failure of consideration in a promissory note, transferred after it became due or set off, etc., though it may be pleaded as a valid defense in a suit brought by the assignee, is not, according to this doctrine, a counter-claim which requires a reply. In a suit brought by an executor in his own name, on a note given to him as executor for a debt due to the testator at the time of his death, the defendant cannot set off a demand which existed against the testator in his life-time.'' [If one, to whom property is pledged, employ the owner to sell it, and he sell it to one who has notice of the pledgee's lien, he ' Beclierriiise v. Lewin, 3 Eng. Rep. ^ 2 Duer, 639. 684; 20 Weekly Rep. 720, Com. PI.; 41 ^ Yasaear v. Livingston, 13 N. Y. L. J., N. S., 0. P. 161. 253 ; Ferreira v. Depew, 4 Abb. 131 ; ' .Vi'tfer V. £os««, 9 How. Pr. 360. Diineaa v. Stnutvn, 80 Barb. 536' - Van Pelt v. Boyes, 8 How. Pr. 319. RolertH t. White. 2 Rob. 433 ; Thorap ^ Beckwith v. Union Bank, 4 Sandf . son v. Sickds, 46 Barb. 49 ; Melldain v 604, affirmed by Ct. of Appeals [Lowell Edgcrton, 2 Rob. 423. 1. La-'.e. 33 Barb. 293]. ^ Merritt v. Seaman, 3 Seld. 168. 624 THJE ANSWER. [CH. V. cannot, wlien sued for the purchase price, interpose a set-off or counter-claim against the owner ; ' otherwise if the facts were not known to the purchaser.'] 2. As to matters in recoujjment of damages. — At common law, no right of set-off existed, it being the object of the system to contine every suit to the particular subject of litigation which gave rise to it. The origin of the rights is to be traced to the courts of equity and the civil law where it was recognized under the name of compensation.' In process of time, however, and by means of legislation, this innovation upon the strict doctrines of the common law was brought about, and the equitable principle introduced by which a defendant, instead of being driven to a separate suit to establish his demand against the plaintiff, might set it up in an action on contract, and litigate it in the [*560] same *suit, when snch demand also arose on contract, existed between the same parties and was liquidated. The rule, however, did not extend to unliquidated damages, as, in an action or contract for the price of the thing sold, the defendant could not assert his set-off or counter-claim for damages arising from a breach of the plaintiff's contract or warranty, which formed a part of the same transaction ; nor, originally, did it extend so far as to allow the defendant to set up or recoup his damages, arising from the plaintiff' 's negligence, or fraud, etc., in the execu- tion of the contract on which the suit was brought; but the defendant was, in all cases, driven to his cross-action. The equity doctrine, however, was in time extended to include the latter class of cases. The same reasons, says Mr. Sedgwick in his Ti'eatise on Damages, which operated to introduce the original doctr.'.ie of set-off, have tended to enlarge it; and the severity of the s'.atute has introduced the doctrine of recoupment.* The doctrine is very fully and accurately traced by this writer, in its origin and development in the courts of England and our own country, and it is shown that, while it originally merely implied a deduction from the plaintiff's demand, arising from payment, in whole or in part, or from recoverj^, or some analogous fact, it is now understood to embi'ace counter-claims of the defendant, ' Nottehohm v. Manx, 3 Rob. 249. ^ Sedg. on Damages, 4.56, 457. ' Bliss V. Bliss, 7 Bosw. 339. '' Sedg. on Damages, 457. SEC. IV.] COUNTER-CLAIM. 625 [*561] and to be, in short, a kind of irregular and * unliquidated set-off, which has crept in, notwithstanding the rigorous terms of the statute.' Thus, negligence and badness of materials were originally held to be defenses to an action for a stipulated sum agreed to be paid for the work ; but the defendant must resort to his ci'oss-action. But this was very soon overruled, and the contrary established. And though it was admitted that the defendant could not, in an action on contract for labor at a stipu- lated price, claim damages strictly by way of set-off for a breach of the ihiiMed contract that the -work should be faithfully per- formed, yet he might prove, in recoupment or mitigation of damages, the unskillful or unfaithful performance.'' Upon the same principle, recoupment of damages was allowed in case of fraud." But it was still contended that the principle was not applicable to the ease of a Tjona fide warranty, and that such unliquidated damages arose strictly on contract, and could not be set off in an action for the price of the article sold. This question was fully considered in this State, and finally settled in Heab v. 2IcAllistei\* which has since been regarded as a leading ease on this subject, and such unliquidated damages held to be a proper counter-claim in the same action, on the principle of recoupment. The reason given, in lieab v. JIcAllister, for extending [*562] the equitable principle of set-off, and permitting * such defenses is to avoid circuity of action. " A second litiga- tion on the same matter," says the court, " should not be toler- ated, when a fair opportunity can be afforded by the first to do final and complete justice to the parties." Precisely the same reason is given b}' the commissioners of the Code for extending the equitable defense by "counter-claim " far beyond what it was before in courts of law, under the most liberal class of decisions, namely, to prevent "the inconvenience of having several law suits where one would answer the purpose." ' And under the provision, heretofore noticed,' that by the Code, in an action on contract, unliquidcded damages on contract between the same parties may be set off, no matter whether such contract relate to ' Sedg. on Damages, cliap. 17. * 4 Wend. 483, 8 id. 109. ' 14 Jolins. 378, 8 id. 433, 3 Wend. ^ See report of commissioners, com- 431. plete, pp. 367, 308. • ^ 13 Jolins. 303, 8 Wend. 386. « Ante, p. 554, marg. p. 19 626 THE AWSWEE. [CII. V. the snbject-mattor of the suit or not, such a defense as that set up in Reab v. McAlliater and kindred cases is a set-off^ and is governed by tlie same principles -wlucli governed wliat was strictly and properly a set-off before the Code. [Where cement was purchased to pass inspection by an United States inspector, and it did not, held, that it was the duty of the purchaser to offer to return it, and not having done so, he had no claim against the seller.'] Recoupment proper, as understood in the light of the more recent decisions, was in the nature of a claim or right constituting in itself the ground of a cross-action." Though, as we [*563] have elsewhere * seen," it may be pleaded under the Code, although not claimed as a full defense to the action, yet it was never pleaded in bar under the old system.'' It was always founded on a contract ; the right of the plaintiff to sue was admitted, and the defendant, instead of bringing a new action against the plaintiff for damages sustained by reason of a breach of another branch of the same contract, or by reason of the plaintiff's negligence in the execution of, or fraud in contracting it, was permitted in the same action to recoup, that is, cut off, or keep back, so much of the plaintiff's claim. If the defendant's damages exceeded those of the plaintiff, he was necessarily driven to his cross-action, for he could have no affirmative relief, recoup- ment being in mitigation of damages merely, or in defeat of the action, so that no balance could be certified in favor of the defendant." The defendant, it was said in JBatterman v. Pierce,'' might recoup " where the demands of both parties spring out of the same contract or transaction, although the damages on both ' Delafiehl v. DeOrauw, 3 Keyes, stood. See ante, p. . The question 467. is now of practical importance only so '■' In the case of KneedUr v. Stern- far as it respects the necessity of a burr/h, 10 How. 67, it was endeavored reply, etc., to matter so pleaded ; and to be shown that recoupment is not I agree that tlie text in this respect is, always a subsisting claim; that is, that the matter so pleaded must of itself that a party has not always a cause of constitute a chiim — looking to affirnia- action for such matters as may be five relief — or which might have been proved in recoupment; and, in such the subject of a cross-action, no matter cases, itisnot a<-«7(«?('c-('/(/t//( under the whether technically it could have Code. This doctrine seems to be been called recou]mient or not. strictly correct, as is evident from the '■' See ante, p. 4.ji, inarg.p. earlier English cases cited by Mr. '' 3 Comst. 2S'2. Sedgwick, and tlie nature of this ' 11 Wend. 2."i7. defense as it was originally undir- » 3 Hill, 171, per Beonson, J. SEC. IV.] COUKTER-CLAIM. 627 sides are unliquidated ;" though in Cram v. Dresser^ the [*564] word "transaction," as here used, *was said to denote nothing more tlian the contract itself and its accessories, and the superior court of New York refused to allow the tenant, in an action to recover rent on a lease, to recoup damages occasioned by tortious acts of the landlord's servant entering to make repairs under a stipulation to that effect in the lease. The injury, it was said, did not arise out of the breach of any covenant or stipulation of the contract which was the foundation of the suit." The definition used by the Code is still broader than that in Batterrnan v. Pierce, or indeed, in any adjudged case in this State, and would, it is thought, admit such a defense as was shut out in Cram v. Dresser, supra.' The language is, "arising out of the contract or transaction set forth, etc., or connected loiih the subject of the action." The words in italics are somewhat vague and indefinite. It is difficult, in the absence of any judicial construction, to say how far they were intended to extend, and whether designed merely as a qualification of the ['•565] *clause immediately preceding, or whether as an independ- ent proposition, allowing any defense, no matter whether arising out of the contract or not, so that it be, however remotely, " connected with the subject " matter of the action. I should be slow to believe the latter could have been intended, as, for example, that in an action for the price of land sold, the defendant could set up a trespass by the plaintiff at a subsequent time on the same lands, or, in an action to recover the possession of personal property, the defendant could set up and claim judgment upon a promissory note given by the plaintiff for the same property. The words, "subject -of the action," should, perhaps, be construed not as ' 2 Sandf. 23.5. the issues were joined. In the late ' And see this same question dis- case of Drnlw v. (lockroft, in the X. Y. cussed, and autliorities cited, in 2Tin/i>r Com. PI., 1 Abb. Pr. 203, 10 How. oTT, of New York v. Mabie, 3 Duer, 401. tlie tenant, in a suit for rent, attempted S(!e, also, Drake v. Cockroft, 1 Abb. Pr. to set up, as a counter-claim, damages 303. arising from trespasses committed by ' Tills is made the subject of a qnere the plaintiiF on other premises hired by in Mayor of New York v. Mabie, 3 the defendant of the plaintiff simuU Duer, 401, whicli sustains, in all re- taneonsly with the leasing of the spects, the case of Cram v. Dresser; premises for the rent of which suit but as the pleadings had been put in was brought ; and this was very prop- before the amendment of the Code in erly regarded as not constituting a relation to counter-claims, tlie case was valid counter-claim, decided by the law as it stood when 628 THE ANSWER. [CII. V. relating to the thing itself about which the controversy has arisen, bnt as referring rather to the origin and ground of the plaintiff's right to recover, or obtain the relief he asks. Any thing neces- sarily connected with, that is, growing out of, or the direct result of, the contract, or the transaction which the plaintiff alleges as the ground of his demand, may, if a proper subject for a cross- action by the defendant, be set up as a counter-claim ; but the defendant should be able to trace the origin of his right or claim for relief to the transaction itself, which furnishes the plaintiff his ground of action.' The " subject of the action," in a suit to recover real property, is not the land itself, but the possession. In an action for the price of a chattel, the " subject of the action " is not the chattel, but the contract for its sale. A subse- [""566] quent * injury by the plaintiff to the chattel itself would not, therefore, if this position is correct, be a counter-claim '• connected with the subject of the action," which the defendant might set up in his defense. The claim must be connected with the contract of sale. The conclusion drawn from this view of the case is, that the words, " connected loith the subject of the action" as used in the section of the Code under consideration, are used merely to qualify the words which immediately precede them. Though the effect of the whole section, therefore, is, no doubt, as the commissioners express it, " to open the door still wider and admit many cross-demands now excluded," yet, it could not have been intended to admit distinct and independent torts to property, or other claims for damages, to be set up as defenses in actions on conti-act, or other actions affecting the same property, where such defenses do not arise out of some part of the trans- action which the plaintiff alleges as the ground of his demand. One of the objects of the provision of the Code under consid- eration, indeed, seems to be to adopt and extend to all actions the principle of equitable set-off,' as it was formerly recognized in certain cases in the chancery practice, borrowed from the civil law. Thus, though as a general rule the court of chancery fol- lowed the rule of law in regard to set-offs, yet, if the couit [*567] found a case of natural * equity, not within the statute, it I Hickmlle, etc.,v. Long Island. ,••,-., 48 ' 8 How. Pr. 319, 9 id. 360. Barb. 35i5 ; Ltine v. Baili i/, 47 i'j. 395 ; Mayor v. Wood, 4 Abb, N. S. 'i'sZ. SEC. IV.] COUNTER-CLAIM. 629 permitted an equitable set-oif, if, from the nature of the claim, or from the situation of the parties, it was impossible to obtain justice by a cross-action.' Where, for example, there were mutual demands between the parties, which could not be set off under the statute, but which a court of equity might compensate^ or ajjply in satisfaction of each other without interfering with the equitable rights of any person, the fact, that one of the parties was insolvent, has frequently been held a sufficient ground for the exercise of the equitable jurisdiction of the court of chancery ; " [otherwise if it have been assigned before due.'] And this natural equity has been recognized in cases where the law could not give a remedy in a separate suit even before the statute.* So, also, in equity, if tlie defendant's claim arose " out of the same transac- tion," or contract, so that the plaintiff in equity had no right to recover against him, the court of chancery would make compen- sation. The practice, in that respect, is stated by Chancellor Walwoeth as follows : " '" If a defendant in a court of law has a distinct and separate demand against the plaintiff, which is not a proper subject of set-off' there, he cannot, generally, come into this court for relief, unless the plaintiff is insolvent. His proper course is to pay the plaintiff's demand, and then prosecute [*568] for his own ; but * if his claim arise out of the same trans- action or contract as that of the plaintiff, so that in equity the plaintiff never had any right to recover against him, if the defendant cannot avail himself of his claim as a defense at law, he may come into this court for relief. He is not obliged to pay an unjust demand, although he may recover back a greater amount in damages in a suit instituted by himself." The Code seems to have made this equitable rule universal, and to have extended it indiscriminately to all classes of action, and without reference to legal, as contradistinguished from equitable, relief. But though there may be a set-oft' of separate and independent contracts, yet there can be no recoupment of damages, properly ,-o called, growing out of one contract against a demand arising on another. This has been so held under the Code, in Deming and ' 3 Vera. 117, 6 Mad. 95. felin v. Hawkins, 1 Daly, 390, 14 Abb. ' 1 P. Wms. 33.5, 4 Conn. 303. 113. ' Mi/frs V. Davis, 33 N.Y. 480 ; Mackey ■* Lindsay v. Jackson, 3 Paige, .581. t. Markeii, 43 Barb. fiO ; Martin v. '^ Becd-v. Bankof yewburgh,l'Pa.\ge, Keemm'jller, 10 Bosw. 19. See Sckief- 318. 630 THE ANSWER. [CII. V. Colt V. Kem.p^ at a general term of the New York superior court, where, under a parol contract for the future delivery of a fixed quantity of goods at such times and in such parcels as might be required, in an action for the price of the parcel last furnished the buyer was not allowed to recoup for his damages growing out of the inferior quality of the goods previously delivered. The separate deliveries were considered, in their nature, as distinct acts and separate contracts. And tliough, in an action on a sealed instrument, such as a bond, as well as an unsealed instrii- [*o69] ment, the defendant may * recoup his damages arising out of fraud in the consideration for which such instrument was executed," yet, in an action to foreclose a mortgage given as security for such bond, the defendant cannot set-off or recoup damages on account of an alleged fraud practiced upon him in relation to the same premises, after the execution of the bond and mortgage. This is not a part of the same transaction nor con- nected with the subject of the action. So held in Reed v. Latson' at a general term of the court in the 4th district. Under the foregoing limitations, and within the principles here- tofore laid down, as in the case of set-off, any matter may now be given in recoupment of damages which exists in favor of a defend- ant, and against a plaintiff, between whom a several judgment may be had. And if the defendant's damages exceed the plain- tiff's demand, he may, doubtless, within the meaning of section 274, as amended, have a judgment for the balance. Other subjects of cross-action and for specific relief. — The section under consideration is broad enough to include every variety of claim, whether legal or equitable, which the defendant, within the limits above mentioned, may have against the plain- tiff, and of which on his part he could have availed himself in a separate action. Thus, in an action founded on a legal title to recover the possession of land, the defendant may now [*570] set up an equitable * right to a conveyance from the plaintiff", and if he prove himself equitably the owner, with right of possession, and entitled to the conveyance from the plaintiff, he will not only defeat the action but may obtain his athrmative relief.'' ' 4 Sandf. 147. ' 15 Barb. S. C. 9. » 5 Hill, 03. * Crary y. Goodman, 12 N. Y. 366 ; SEC. IV.] COUNTER-CLAIM. 631 In Otis V. Sill,^ it was denied that a specific lien on property could be enforced in an action for taking the same property, or that such a defense could be set up in such an action, the remedy being purely equitable. But now, in such an action, a defendant may set up his lien in defeat of the plaintiff's right to recover and claim its enforcement, precisely as he might heretofore have obtained such relief by a suit in equity.'' In Averill v. Taylor,' it was intimated, but not decided, that in an action to restrain a statute foreclosure of a mortgage, and to have the bond and mortgage delivered up and canceled, the defendant, if he succeeded in his defense, might have a judgment for the foreclosure of the mortgage. This, it is certain, he may now have. So, too, the converse would be true, that in an action to foreclose a mortgage, a defendant may set up facts showing himself equitably entitled to have the bond and mortgage delivered up and canceled. [*571] * So also in an action to recover back money paid on a contract for the sale of lands, the defendant may set up the contract, and the fact showing his full performance, not only in defeat of the action, but as the ground of his own claim against the plaintiff for a specific performance of the contract. And, in an action for breach of a covenant in a deed, or condition in an agreement, the defendant may set up, by way of counter- claim, a mistake, etc., in the instrument on which the action is founded, and demand that it be reformed or corrected ; and the aftirmative relief sought will be administered in the same action. This, it was held by the court of appeals, could not be done prior to the late amendments.* In a case, not reported," a plaintiff demanded an injunction against a defendant to restrain hiiu from turning the course of a creek through a portion of a farm, sold by defendant and others to the plaintiff', and claimed damages for digging part of a new channel for the creek ; and the defendant set up and insisted upon the defense that the part of the farm through which he sought to turn the course of the creek was not Carpenter v. Ottley, 2 Lans. 455 ; Ddbson ' 9 Barb. S. C. 103. V. Pearce, 13 N. Y. 166, 1 Abb. 103 ; ' Hiiim^an v. Judson, 13 Barb. 639. Dishard v. Walbridge, 15 N. Y. 379 ; ^ 5 How. Pr. 476. Eickseille, etc., v. Long Island, etc., 48 * Haire v. Baker, 1 Seld. 357. Barb. 335 ; Phillips v. Gorlimn, 17 N. '■ Sharp v. Warner, Albany spe ia] Y. 370. term, June, 1854. 632 THE ANSWER. [CH, V. intended to be conveyed in the deed, but that, if embraced there- in by the terms of the instrument, the same was by mistake, and asked conditional relief, by way of counter-claim, that tlie deed be reformed and corrected. On a motion to strike out this [*572] defense, as being irrelevant and not amounting * to a counter-claim. Justice Haekis denied the motion, and without expressing an opinion as to the ultimate validity of the defense, held that the defendant was entitled to have it retained until the trial. This was before the amendment allowing a demurrer to an answer. The question upon the validity of such a defense could now, doubtless, be raised by demurrer ; and so, also, in regard to such a defense as was set up in Oleason v, Moen.'' [The following have been held to be counter-claims.'' In an action to recover rent the amount paid by a tenant in making repairs which the landlord covenanted to make ; ' money lost in betting.^ In an action to rescind a contract for a lease the land- lord may set up a counter-claim for rent of the premises.'^ Expen- ses paid in recovering goods abandoned under an insurance policy." In an action to recover the amount loaned on stock every sum paid or to be credited on the account thereof In cases of recoupment the defendant may recover tlie excess of his claim beyond that of the plaintiff.' A bank with whom assignees, for the benefit of creditors, have deposited the proceeds of sales of assigned property after it has exhausted its remedy by judgment and execution may, when sued for such proceeds, set up as a counter-claim that the assignment was fraudulent as against creditors, and their right to be paid out of the proceeds in the hands of the assignees.' It is matter of recoupment that the owner of a house, formerly kept as a house of ill-fame, lets it, representing it to be a good place to keep boarders, and without disclosing such fact, if the tenant be annoyed by persons of ill repute coming at all times of night and endeavoring to get in, so ' 3 Duer, 639. i> Matjor, etc., T. Wood, 4 Abb. K. S. 2 The reader sbonld consult Wait's 333. and Voorhies' Codes and notes to § * RoUnson v. Corn Excltange, 1 Abb. 150. N. S. 186. = Mi/crs y. Burns, 35 N. Y, 369 ; ' Diirant v. Einstein, 35 How. 334. 'Wmit V. Gove, 38 id. 80. * Boston, Silk, etc., v. EuU, 37 How. ■» MeDoagnU v. Walling, 48 Barb, 364. 299, 6 Abb. N. S. 319. ' Lawrence v. Bank, 3 Rob. 143. SEC. IV. J COtJNTER-CLAIM. 633 that boarders decline to stay.' In an action for rent defendant may interpose a counter-claim for damages done to Lis goods by soot from plaintifl''s furnace, erected in the basement." So in a suit for moneys collected by an insurance agent he may set up that plaintiff employed him for a year and improperly discharged him before its expiration, whereby he was damnified.' So in a suit to foreclose a mortgage defendants may set up that plaintiff, on giving it, agreed to release a portion of the premises on pay- ment of a certain amount, and had refused to do so, whereby he sustained damages.' An answer, that plaintiff agreed to act as defendant's agent in purchasing bonds, and to account for money placed in his hands, and that after receiving a certain sum he refused to account therefor, but appropriated it to his own use, sets up a claim on contract and a valid counter-claim." The fol- lowing have been held not to be. In an action by a preferred creditor against a general assignee, for the benefit of creditors for an accounting, an answer by the assignee, setting up that he had incurred certain expenses in repairing a steamboat belonging to the estate, and in defending suits against the boat ; ' in an action for conversion of propert}', that plaintiff is indebted to defendant in a sum greater than the value of such property.'] In an action for damages for a breach of contract to convey land, the defendant may set up in defense a breach by the plain- tiff of certain covenants in the contract of conveyance, and claim affirmative relief for specific performance.' In an action of eject- ment, the defendant may set up an equitable title, and claim the conveyance of the legal estate.' In an action for the partition of land, the defendant may set up his own exclusive title and right of possession, by way of claiming judgment in the same action for the recovery of the possession ; or in a suit to perpetuate the possession and enjoyment of real property, and confirm a [*573] title where there has been a loss or * destruction of the deed or will, the defendant may deny the title alleged, ' Staples v. Anderson, 3 Rob. 327. ' Huelet v. Iteyns, 1 Abb N. S. 37. " Ayres v. O'Farrell, 4 Rob. 668. ' Hunt v. Farmern' Loan and I'rnst ^ LorUlard,etc.,-f. Meslmral, 7 Rob. Co. and Rogers, 8 How. Pr. 416; ami 308. see ante, pages nOo, 508, marg. p., ^ Stanford V. Traders, 40 N. Y. 140. equitahledefeimetoli-iiiilraiiseofartion. = Ooit V. Stewart, 13 Abb. N". S. 316. ' Dewey v. Hoar/, io Barb. S. C. 36.=5. » Duffy V. Duncan, 85 N. Y. 187. 80 634 THE ANSWER. [CII. V. and set up his own exclusive riglit of possession and enjoyment. And in most cases where the matter in defense was heretofore the proper subject of a cross-bill in equity /or reliefs such matter may now be set up by way of counter-claim in the action. Set- ofi's, as we have seen, were allowed in equity, as at law by statute ; but the defendant, if he had any afBrmative relief to obtain, founded on any collateral claim and touching the matters in suit, must get it in the shape of a cross-suit, and could not set it up in his answer. A cross-bill, however, was generally considered a defense, and the original cause and cross-bill but one suit ; ' the time for filing the cross-bill was at the time of putting in the answer, and tlie defendant might have an order, when both causes were at issue, that they be heard together." A cross-bill was only necessary when the defendant was entitled to some affirmative relief. It was held not necessary in the foreclosure of a mortgage in fee, when the answer of one defendant alleijed a prior life estate in himself.' A cross-bill could not introduce new and distinct matters, not embraced in the original bill ; ' and it was founded always upon matters in question in the original suit;" and Avas necessary when the defendant M'as entitled to [*574] * some positive relief beyond what the scojje of the com- plainant's suit would afford. ° Thus, to a bill brought to enforce a contract, a cross-bill to rescind a different contract respecting the same property would not lie. But where a vendor of land, among other things in his bill, asserted a lien for the purchase-money against an assignee of his covenant for a title, the latter might maintain a cross-bill for a rescission of that contract.' It lay in a suit for specific performance of an agree- ment, to have the agreement delivered up and canceled ; also in a bill filed to set aside an agreement or conveyance, it lay to have the agreement or conveyance established.' All these various matters, which, under the equity practice, were proper subjects for a cross-bill, where the object was for relief and not discovery, are supposed to be within the definition of the term " counter-claim," as used in the Code, and may be set 1 7 Jobna. Ch. 25-3, 8 Cow. 801. ' Mitf. Eq. PI, 81, Coop. Eq. PI. 85. ' 3 Barb. Ch. Pr. 139, l:Jo. " 9 Coxveu, 747. 3 ;^ Barb. S. 0. 151. ' 1 Danu, 589, •> Hopk. 48. « 3 Barb. Ch. Pr, 128. SEC. IV.J COUNTER-CLAIM. 635 up by the defendant in the action. It will be impossible to undertake a particular enumeration of the cases in which the cross-bill might have been proper in equity, or in which, under our present practice, the counter-claim, which seems to be its substitute, may be used. The above general remarks may serve to give something of an idea of its nature and use. It is to be observed,, however, that the counter-claim,' in one respect at least, is more extensive than the cross-bill. The latter would [*575] lie only for * equitable relief. If it were brought for a mere legal title, which is the subject of an ejectment, it would be dismissed.' This rule can have no application under the system adopted by tlie Code. A cross-bill \\'as sometimes necessary in adjusting equities be- tween defendants, as where the court could not make a complete decree without bringing every matter before the court, to be liti- gated by the proper parties and upon the proper proofs. In such case it became necessary for some one or more of the defendants to file a cross-bill against the plaintiif and some one or all of the other defendants, and tlius bring the litigated point fully befoi-e the court.^ This, in a proper case under the Code, it seems, may also be done by answer," and, in such case, the answer should be served upon the defendants.* So, also, the cross-bill was sometimes resorted to of necessity, when, by the rules of equity pleading, the defendant could not avail himself of his defense in any other way, as in cases where the matter of defense, such as release, award, etc., arose after suit brought and issue. '* These matters of defense may now all be taken by supplemental answer.' [*576] """And the provision, it seems, extends to counter-claims proper, as well as to these merely defensive matters. It is said, in ^Ylllis v. Chijjp^ " Any facts existing at the time the ' 2 Barb. Cli. Pr. 138. arising after suit brought, though - Story's Eq. Pl.,§ 393, Coop. £lq. 85. under the equity practice they could ' Bogardus v. Parker, 7 How. Pr. only be interposed by cross-bill, cannot }i05 ; but see Woodworth v. Bellows, 4 in any sense be designated as counter- id. 24, and see ante, p. 511. claims. In this respect, at least, the ■• Tracy v. Neio York Stram Faucet cross-bill in equity is not identical with Co., 1 Smith's N. Y. Com. PI. 349. the cinintcr-rhiiiii, of the Code. And ° Story's Eq. PL 393, Coop. Bq. PI. the same may be said of the cross-bill^ 86, 87. as used for the purpose of adjusting ^ Such defenses, however, as release, equities between defendants, settlement, award, bankruptcy, etc., ■■ 9 How. Pr. 568. 636 THE ANSWER. [CII. V. defendant ansivers, and which show that the plaintiff ought not to have a judgment against the defendant, may he inserted in tlio answer," whetlier such defense arose before or after suit brought. Perhaps, however, a set-ofi' must be excepted, which is required to consist of a claim " existing at the commencement of the action." ' A defendant is not bound, in his answer, to set up a demand which, from its nature, is a proper subject of a counter-claim, but he may elect to enforce its recovery in a separate suit. lie has, at all times, such an election in relation to a set-off or a recoup- ment of damages, and his rights in this respect have not been varied or affected by the Code." [*578] * Such defense, to be made available, should be inter- posed to the first action, which will not be stayed in order to enable the defendant to establish his equitable title to relief in a subsequent action.' And if judgment be obtained in such first action, it cannot be impeached by any such equitable defense, existing, to the knowledge of the party, in time to avail himself of it at the former trial. This was so held in equity, in the case of Draper v. Gordon,' and was also the principle recognized in the leading case of Ze Guen v. Gotiverneur and Kemhle,'' and this seems to be the extent of the principle, as properly applicable under the present system. But there is nothing in the Code, or in the correct application of this principle, to compel a defendant, in an action against him, to set up a proper matter of counter- claim, constituting iu itself an independent subject of action, which may be enforced against the plaintiff as well after as before judgment obtained in the plaintiff's suit, and without, [*579] in any * degree, impeaching such judgment ; and this was the doctrine upon which the case of JIahey and another V. Carter ' proceeded. In such cases, therefore, the plaintiff may proceed to judgment and execution in his suit, and the defendant, if he so elect, may snbseqnentl}' enforce his countei'-claim in the same ^\ay. Thus, if one partner, after dissolution, sue another on ' See post, 5^ 7, o( this chapter, as to 323 ; Siemoii v. Sdnirck, 39 N. T. 508, whether such a defense, arisiii!;' after affiniihig 33 Barb. 9.] suit brought, may be made by /nipple- " See Jli/nt v, Furmrrti' Loan unci ineiit'il iinmrer. Ti'Uit ('«., 8 How. 41(); Dederick ^. » llalwi/ V. GiirUr, I Ducr, (KIT [Oil Ifoi/.v-ddt, 4 id, 3r)0. lespie V. Tnrrinire, 2") N. Y. 30C>, afiirm- '' 4 Saiidf. Cli. 310. ing 4 Bosw, :JG; reck v. Minot, 4 Xiob. ' 1 Johns. Cas. 4o5. « i Duer, OUT. SEC. IV.J COUNTER-CLAIM. 637 a note for money lent, the defendant, by way of counter-claim, may, according to the decision in Gage v. Angell,'^ set np the part- nership transaction, and demand an accounting, and that the balance, certified in his favor, be set off on the plaintiff's demand. Or ho may, if he prefer, suffer judgment against him for the amount of the note, and prosecute his separate action for an accounting, etc. And so in regard to matters which are properly the subjects of set-off or recoupment, etc. But he cannot inter- pose his defense in the first suit, and at the same time have a separate action on the same matter." [If a counter-claim be set up, and the defendant do not appear, it will be barred. If with- drawn it will not ; nor will it if the parties stipulate that it shall not be affected by the judgment.' Where an action was com- menced to restrain a statutory foreclosure, on the ground that the mortgage was paid, and the defendant interposed the mortgage as a counter-claim, and demanded judgment of foreclosure and sale, it was held, after trial before a referee, that the defendant could not, by waiving his claim to affirmative relief, thus change the issnes joined so as to deprive the plaintiff of the fruits of the litigation * — a judgment that a sum much less than that claimed in the statutory foreclosure was due, and that on payment of that amount the mortgage be satisfied.*] Counter-claim, how stated. — The defendant should set forth his counter-claim substantially in the same manner as the matter of a complaint, except in the mere formal matter of the com- mencement, as, for example : " And for a further answer to the plaintiff's complaint (or to the first cause of action set forth in the complaint), the defendant says," etc. A cross-bill filed [*580] for collateral relief differed in no * respect from the com- mon form of an original bill, but stated the injury sought to be redressed. The rules, therefore, heretofore given, are, in most respects, applicable to the mode and manner of stating the defendant's counter-claim. The counter-claim is substantially in the nature of a new action. ' 8 How. Pr. 335 ; but see contra, note, ^ Sutherland v. Rose, 47 Barb. 144; ante, p. 555. Miller v. Freeborn, 4 Rob. 608. See ^ Farmers' Loan and Trust Oo. v. Miller v. Beekman, 42 How. 33 ; Filnter Hunt, 1 Code R. N. S. 1. v. Smith, 41 id. 418. 5 Foster v. Milliner, 50 Barb. 385 ; but see Miller v. Freeborn, 4 Rob. 608. 638 THE ANSWER. [CII. V. It is an independent cause of action in itself, and should be required to be stated with the same distinctness, precision and certainty as the matter in the complaint. If controverted by the plaintiff it is required to be denied by a reply. The same rules, therefore, as to -duplicity, hypothetical pleading, striking out redundant and irrelevant matter, etc., etc., will aj)ply. Thus, in Dewey v. Jloag,' in an action to recover possession of land, in which an equitable title and claim for reconveyance on the part of defendant M'as set up in the answer, without, however, any prayer for such relief. Justice Hand says : " The defendant must become an actor in respect to his claim, and his answer must con- tain all the elements of a bill for a specific performance, and he must asJc and obtain affirmative relief;" and the defense was held to have been defectively stated, for the reason, among others, that it did not oifer to perform, nor ask that the plaintiff be required to perform, and claimed no judgment except for costs. A prayer for such affirmative relief as the plaintiff demands should [*581] regularly * be inserted,'' but if the answer consist simply of defensive matter a prayer for relief is unnecessary and irrelevant. Recoupment of damages, as we have seen, could not, in an action at law, be pleaded," but might be given in evidence under the general issue with a notice of such evidence ; but such a de- fense should now be set up or pleaded as a counter-claim, substan- tially in the maimer that the party intending to avail himself of it would state it in his complaint in an independent action.* Or, perhaps, which is much the same thing, it should be set up sub- stantially tlie same as it was required to be in the fonner notice under the general issue, which, as we have already remarked, though not required to be in the strict technical form of a plea, must contain all the facts necessary to be stated in a special plea.* The foregoing rules, therefore, which have been given relative to the general mode of stating new matter in the answer, may be considered applicable in I'egard to these matters of counter-claim. The mere fact that a defendant has commenced an action for damages on the same claim which has not proceeded to trial or ' 15 Barb. S. C. 365. ' NiclwU v. Dusenbvry. 3 Comst. 283. ' See Anonymous, 11 Leg. Obs. 350 ; ' WiUis v. Tnqgard. G How. Pr. 433. Gaga v. Awjill, 8 How. 335. = 18 Jobus. 475, 10 id. 140, 8 id. 455. SEC. IV. j COTJNTEE-CLAIM. 639 judgment, is not necessarily a bar to his setting up tlie [^^■582] same matter in the answer by way of recoupment,' * still, a defendant will not be allowed to have at the same time his separate action and his defense on the same matter, but will be put to his election, either to proceed in the suit he has insti- tuted, or confine himself to his recoupment in his answer." If a defense be founded on a written instrument, for the pay- ment of money only, it will be sufficient to set out a copy of the instrument and to state the sum due and claimed thereon.' But this also must be understood with the limitation recognized in Lord V. Cheesborough, supra," that the present defendant niiist, by some proper averment in the answer, show himself entitled to recover on such instrument against the present plaintiff. In lianney v. Smith,'' a set-off was held to be a defense within the meaning of section 150, requiring defenses to be separately stated and to refer to the causes of action which they were in- tended to answer. In that case, a set-oft' was alleged, consisting of sundry items, among which were four notes, on which the defendant claimed that the plaintiff was indebted to him in the sum of five hundred dollars, setting forth copies of the notes. The answer then alleged a judgment against the plaintiff' [*583] * as a set-off and a chattel mortgage. The court denied a motion to strike out or set aside that part of the answer relative to the notes, mainly on the ground that, by the amend- ment to section 162, the defendant was at liberty to set out a copy of the note as his statement of demand, and that the copies of these notes were " separate " statements within the meaning of section 150. In relation to the manner of stating a defense by way of set-off" generally, the rule was very clearly laid down by the court in that case, as follows : " That the answer stating the defense of set-off should state, as new matter, the facts constitut- ing the cause of action or demand against the plaintiff as a set- off', in the same manner and with the same particularity as those ' Fabricotti v. Launitz, 3 Sand. 744 ; under tlie Code [Harris v. Hammond^ Compton V. Greene and Ide, 9 How. Pr. 18 How. 133] . 338 ; Harris v. Hammond. 18 How. 133. » Code, § 163. •^ Fahricotti v. Launitz, 3 Sandf. 74 1, * 1 C. R., N. S. 253,4 Sandf. 696, and 1 C. R., N. S. 191 ; Farmers' Loan and see ante, pp. 326-233. Trust Co. V Hint, id. 1 ; and see latter '" 6 How. Pr. 421, special term, per case, as to the pi-actice in such cases Marvin, J. 640 THE ANSTVEE. [CH. T. facts would be stated in a complaint. And -when two oi- more notes, judgments or bonds, or other distinct demands, are in- tended to be set-otf, each of tliem should be separately and par- ticularly described, with all the allegations or averments neces- sary to show the liability of the plaintiff, and so as to enable him in his reply to take issue by denying any of the material allega- tiojis pertaining to eacb note, judgment or bond, or other par- ticular demand ; or to avoid the same by alleging new matter. But all demands constituting the set-off may be contained in the same fstaUment of new matter in the answer ; each demand which, in a complaint, should be separately stated, as constituting by itself a cause of action, being separately described or stated with the necessary averments, and all constituting the defense of set- off." [One who advances money to an officer of the State, not authorized to borrow money on its credit, acquires no right of action against the State, even though the money was required and used by the officer in the discharge of his duty as such ; ' nor can a citizen, when sued by his State, interpose a counter-claim as a defense.^ [*584] *In case a set-off is relied on as a counter-claim, the nature and. extent of it should be clearly and distinctly stated.' It is not sufficient to allege that the plaintiff, previous to the accruing of the demand set fortb in the complaint, was indebted to the defendant on account of previous transactions in a sum of money equal to the sum claimed by the plaintiff, as will appear by the account current rendered by the plaintiff. Under an order to make such an answer more definite and certain by amendment, the defendant alleged the set-off" to be for work and labor, and for goods, wares and merchandise, and for money lent, paid and expended, in the language of the conmion counts iinder the old practice. The answer was held bad, and a motion to strike out granted, with costs.'' ' People V. Brandreth, 3 Abb, N. S. * Wiggins v. Gans, New York supe- 234, .SO N. Y. 191. rior court, per Mason, J., with the * Battle V. Thompson, 65 X. C. 408. cnni'un-ence of the other justices, 3 •' Ante, 551, marg. p. Sand. 738. SEO. V.l VERIFICATION OE. 641 SECTIOlSr V. VERIFICATION" OF THE ANSWEB • In treating the subject of the verification to the plaintiff's com- plaint, ante, chapter four, section four, the form and manner of verification • in general were considered, and the conse- [*585] quences of a defective verification.' * These remarks are, in the main, applicable to the verification on the part of the defendant. It will be proper in this section to notice, briefly, one or two matters in addition, relating particularly to the answer, and first : Wlien defendant is privileged from verifying his answer. — Under the original Code of 1848, which required all pleadings to be verified, the party might omit a verification whenever he would be privileged from testifying as a witness to the same matter." It was accordingly held that the verification might be omitted when the court could see that the matter contained in the pleading was such as might aid in forming a chain of testimony to convict him of a criminal ofifense ; the criterion being, not whether the pleading might be used against him in a criminal prosecution, but whether, if called as a witness, he would be excused from answer- ing the same matter.' And it was enough to excuse the verifica- tion, if any of the parties would be privileged from answering, though other parties might not be so privileged ; nor need all the statements in the pleading be such as would excuse the party from testifying as a witness ; if any part of the pleading was of such a character it need not be verified." The Code, as amended in 1849,' left it optional with a [*586] plaintiff to verify his complaint ; but if he * did so, the defendant was required to verify his answer also. The section, as thus amended, contained no clause excusing the party from verifying his answer in certain cases, or provided that the pleading thus verified should not be used against the party on a criminal prosecution, etc. Under the Code, as it thus stood, the ' See ante, 370-535, marg. pp. ^ Clapper v. Fitzgerald, 3 How. Pr ' See original Code, § 133. 314, per Haeris, J. ■* Code of 1849, § 157. 81 642 THE ANSWEE. [CH. V. New York superior court very properly held that a party was privileged under the constitution from being a witness against himself in a criminal prosecution, and he, therefore, need not admit or deny allegations in the complaint, which he will state in his answer under oath might subject him to criminal prosecu- tion. Such statement in the answer, duly verified according to the Code, would put the allegations in issue, and throw the plaintiff on his proof, precisely the same as though an answer had been interposed denying the allegation.' The same doctrine was afterward held in another case,° with the con- currence of three judges of the same court ; and it was also said that the defendant might decline in this manner to reply to such allegations and answer the residue. In the former case the rule was applied in an action of assault and battery ; in the latter of libel. The Code of 1851 (and this was left untouched by the amend- ments of 1852) remedied the defect, and supplied the omission in the Code of 1849. It provided that the verification might [*587] be omitted * when an admission of the truth of the alle- gation might subject the party to a prosecution for felony ; and that no pleading could be used in a criminal prose- cution against the party, as proof of a fact admitted or alleged in such pleading." But, by a recent statute, the law is brought back again sub- stantially to where it was under the original Code ; and " the verification of any pleading, in any court of record of this State, may be omitted in all cases where the party called upon to verify would be privileged from testifying as a witness to the truth of the matter denied by such pleading ; " * that is to say, where the court can see, or where the defendant is willing to swear, that the matter contained in the pleading may aid in forming a chain of testimony to convict him of any crime or misdemeanor, or to expose him to any penalty or forfeiture,^ or, in certain cases, to degrade his character, etc' In another part of this chapter,' the question was considered as > Eill V. Muller, 2 Sandf. 684. ' 3 R. S. 405, g 71, 2 Edm. Stat. 432. ' White V. Cummings, 3 Sandf. 716. ^ See Cow. and Hill's notes to PM. ' § 157, see whole section as quoted, Ev. 738 to 749. ante, p. 371. ' Ante, pp. 535-527, marg. p. * Laws of 1854, p. 153. SEC. v.] VEEIFICATION OP. 643 to the proper mode of putting the allegations of the complaint in issue, where the defendant is privileged from verifying his answer, and the conclusion was arrived at, that, as the law now stands, the defendant cannot, as he was permitted to do in Hill y. Muller, and White v. Gummings, swpra, put in issue the [*588] allegations by * declining either to admit or deny them, and then set forth the reason thereof in his affidavit of verification ; but that he must put such allegations in issue by a denial in form,, which he need not verify, accompanying such denial when necessary with an affidavit, setting forth his privi- lege, namely, that an affirmative answer to such allegations would tend to render him liable to a criminal conviction, or to a for- feiture, or penalty, etc' Where a party is privileged from verifying his answer to certain allegations in the complaint, which might subject him to prosecu- tion for felony, and there are other material allegations which he would otherwise be bound to answer, the proper course, if the complaint is sworn to, is to put in an answer without verification, with an affidavit of the reason why he does not verify the answer. Or, if it appear on the face of the complaint that [*589] * the allegation itself is of such a nature as must tend, if true, to render the defendant liable to prosecution, etc., he may answer without the affidavit. An answer not verified by oath, when an oath is required, may be treated as a nullity. But a pleading which may be treated as a nullity should be immediately returned, or notice given that it will be disregarded, in order to allow the opposite party to supply the omission or remedy the defect.^ [Or, if it cannot be returned, notice of the defect should be promptly given. °] The defendant may verify his answer even though the complaint is not verified, and this, when a counter-claim is set up, will require the plaintiff to verify his reply to such counter-claim.* It is a sufficient and proper verification if the defendant, in his ' See ante, p. 536, and cases there White v. Gummings, 3 id. 716 ; also, 7 cited. If it appear from the allegation How. Pr. 36, 1 Code B. 36, 3 How. Pr. itself, which is denied, that the party 380, 6 Leg. Obs. 317, 4 How. Pr. 156, would be privileged from testifying to and see ante, p. 376, marg. p. its truth, the affidavit setting forth the " EiiZl v. Ball, 14 How. 305. privilege is superfluous. ■* Code, § 156. ' Lmmbe&r v. Alien, 3 Sandf . 648 ; 644 THE ANSWEE. [CH. V. answer, had stated nothing on information and belief, for the aflB- davit of verification to state that the answer is true to his Tcnowl- edge, without adding the words, " except as to the matters thereia stated on information and belief, and, as to those matters, he believes it to be true." ' As to defective forms of verification, see verifi- cation of complaint." [*590] * Separate answers on the part of separate defendants, not united in interest, must be separately verified by each defendant." One defendant cannot swear to the want of sufiicient knowledge or information to form a belief on the part of a co- defendant. In such cases a proper form of verification is intimated in the opinion of the court, in Kinkaid- v. Kipjp and Brown* to be as follows: " These defendants severally say, each for himself, that he has no knowledge or information thereof sufiicient to form a belief." The makers and indorsers of a note or bill are not parties iimUed in interest, so that a verification by one will be a verification for all.' And if such an answer be put to a verified complaint, the answer of the defendant who has not separately verified his defense will be struck out. The meaning of the words, " united in interest," in section 157, is said to be the same as that of the same words in section 119. It means joint promisors, obligors, and the converse, or at least parties occupying the same position in respect to the same cause of action ; and it is such parties only who have the liberty of verifying a complaint, one for the other." Where there are several defendants, united in interest, [*591] who answer together, the verification may be ^by one alone, if such party is within the county where the attorney resides, and capable of making an affidavit, and is acquainted with the facts.'' It is not very clear what this acquaintance with the facts means, or whether a personal hnowledge or mere helief founded on information is sufficient. The latter is probably in- ' Kinkaid v. Kipp and Brown, 1 tion of tlie Judges of the New York *Duer, 693. , superior court. 2 Ante, pp. 371-376, marg. pp. ' Alfred v. Watkim, 1 Code R. N. S. '' Alfred v. WatUns, 1 Code R. N. S. 343 [Hull v. Ball, 14 How. 305]. 34.S; Andrews \. Storms, 5 ^a.iiiAi.&0^; ^Andrews v. Storms, 5 Sandf. 609 [Oray v. Kendall, 5 Bosw. 666, 10 Abb. [Hvll v. Ball, 14 How. 305]. 70]. ' Code, § 157. '' 1 Duer, 693, approved on consulta- SEC. VI. J SHAM, IREKLEVANT AND FRIVOLOUS. 645 tended, and if one of such joint defendants is generally acquainted with the facts set up in the complaint, doubtless he may, on behalf of all, properly verify an answer, denying all knowledge or information sufficient to form a belief thereof. The affidavit of verification, when made by one defendant, should show affirma- tively that he is acquainted with the facts, and how his knowledge thereof is derived. So, also, when made by an agent or attorney.' But it seems, in both cases, to be sufficient, when nothing is alleged on information and belief, for the verification to be gener- ally that the answer is true, without swearing that the party is acquainted with the facts. [*592] * SECTION VI. SHAM, IBKELBVANT AND FRIVOIiOTJS ANSWEKS AND DBFBKBB8. The original Code provided no way of getting rid of a frivolous answer in a summary way, or of a sham and irrelevant defense. The court, however, for some time before the adoption of the Code, had exercised the power of striking out the plea as false, a practice which, it is said, was founded on the same considerations which lay at the foundation of the practice of striking out frivol- ous pleas, namely, to guard against the delay. But this was con- fined to special pleas of new matter, and the general issue was never treated as a sham plea." So, also, a plea verified under the rules of the court could not be struck out as false, because the court would not try the matter on affidavits," and the affidavit for the motion was required not only to allege that the plea was false or frivolous, but to specify wherein the falseness, etc., consisted. If the court were satisfied that such pleas were interposed merely for delay or some other improper motive, and they appeared pal- pably frivolous, or were shown to be palpably false, they were ' Fitch V. Bigelow, 5 How. Pr. 337 ; safer course, however, in all such cases. Van Home v. Montgomery, 5 id. 288 ; is to bring the verification strictly Hunt v. Meacham, 6 id. 400. But in within the statute, and show that the Southioorth v. Curtis and others, 6 id. party making it (done has the right to 373, Justice Hdbbaed thinks it uu do so. necessary that the affidavit should ^ 8 Wend. 566, 3 Cow. 635, 6 id. 34 specifically state that the jjarij' making [45 N. Y. 472]. it is acquainted mth the facts. The ^ 1 Hill, 870 646 THE ANSWER. [OH. V. stricken out,' and such also was the practice under the original Code." [*593] * The amendments of 1849 applied in terms these prin- ciples directly to the practice under the Code. Section 152 provided that : " Sham answers and defenses may be stricken out on motion." Section 247 : " If a demurrer, answer or reply be frivolous, the party prejudiced thereby, upon a previous notice of five days, may apply to a judge of the court, either in or out of the court, for judgment thereon, and judgment shall be given accordingly." The former of these sections was amended in 1851, by the insertion of the following words in italics, so as to read thus : " Sham and irrelevant answers and defenses may be stricken out on motion, and upon such terms as the court may, in their discre- tion, impose." In Davis v. Potter,^ it was said, that " nham " was not used in this section as synonymous with "false y " if it were so, the I/ruth of every answer might be tested on special motion. It was said in that case, that " it is only where the answer takes issue upon some immaterial averment of the complaint, or sets up new and irrelevant matter, that it can properly be called a sham defense ; " and also, that a sham pleading meant nothing different from a frivolous pleading, except that the latter did not [*594] * necessarily imply that its object was evasion or delay. On the other hand, it is said in the later case of Nichols v. Jones ^ that the essential element of a sham plea is falsity ; and that the true rule to be adopted, under the Code, is to strike out all answers or defenses as sham under section 152, when they appear clearly to be false, whether they are good in point of law on their face or not. In the same case, it was said that a frivolous answer was quite a different thing : " It is an answer which, if true, does not contain any defense to any part of the plaintiff's cause of action ; and its insufficiency as a defense must be so glar- ing that the court can determine it, upon bare inspection, with- 1 1 Hill, 370, 18 Wend. 680. ferts v. Snediker, 1 Abb. Pr. 116; 2 1 Code R. 38, id. 73, 3 How. Pr. 289. [Thompson v. Erie Railway, 45 N. Y. ' 4 How. Pr. 155. 271]. * 6 How. Pr. 355 ; and see also Lef- SEC. VI.] SHAM, IRRELEVANT AND FRIVOLOTTS. 647 out argument. It differs totally from a sham answer in this, that the one is always assumed to be true, and the other must always be proved to be false. One is always bad on its face ; the other generally good. One is decided by inspection ; the other by proof aliundeP ' The distinction, if any, between a frivolous and an irreletrant answer was not noticed in this case. But in the stibsequent case of Harlow v. Hamilton," Justice "Willaed defines an irrelevant answer to be one which is good in form and true in fact, but which has no relation to the cause ; as, [*595] for example, *a bankrupt's discharge to an action of slander. It, therefore, differs from a sham answer mainly in this, that the one is true in fact, and the other untrue. Like a frivolous answer, it is to be decided by inspection, and not by proof aliunde, while a sham answer must be proved to be false. The general definitions in the case of Nichols v. Jones, swpra, have been approved and followed by subsequent decisions,'' with some slight modification of the rules therein laid down. In regard to a sham, answer, the practice seems to have been settled in Mier v. Cartledge* at the New York general term, that if the answer is verified, as required by the Code, a motion to strike it out, as false, could not be entertained, for the court would not try the question on affidavits. " I fully concur with the court," says Justice Edmonds in that case, " when in 2 Cowen, 637, they said they would suffer the pleading to stand upon a very slight suggestion of its truth. We will not try the question on affidavits, and it has never been the practice to require, in answer to such a motion as this, satisfactory evidence of the truth of the plea or answer. A slight suggestion thereof will be enough ; a mere probability of its truth, some reason for believing it to be inter- posed in good faith, may answer. But, when it is manifestly false, where its falsehood is conceded, as in 2 Cowen, 63Y, or [*596] its falsehood is sworn to on the *one side, and on the other no general or special affidavit of merits is produced, and no pretense is made that the plea is true, as in 18 Wend. 567, and in 1 Barn. & Cress. 286, then it is the well-settled ' This agrees with Darrow v. Miller, ' 6 How. Pr. 475. ■ 5 How. Pr. 347 ; Seward v. Miller, 6 ^ See Winne v. Sickles, 9 How. Pr id. 313 ; and Brown v. Jennison, 3 317, and cases infra. Sandf. 373 [Kreitz v. Frost, 5 Abb. N. ■• See note to NicJwls v. Jones, 6 How S, 377]. Pr. 360. 648 THE ANSWER. [CH. V. practice to strike it out for, in such cases, it is dear no injustice can be done." ' [Where the answer read in connection with the complaint shows on its face that it is sham or frivolous it may be stricken out.° But an answer consisting of a general denial of the mate- rial allegations of the complaint cannot be stricken out as sham,' and so of a denial of any material allegation, although affidavits be read to show its falsity.' When the complaint does not state a cause of action an answer thereto will not be stricken out as sham," nor as frivolous.'] In this opinion, as to striking out a verified answer as sham, Justice Baeculo, though intimating at first a dififerent opinion, concurred,' and it may be regarded as a settled practice.' The case of Mler v. Oartledge was for some time thought to be authority for the practice of striking out, as false or sham, an answer consisting of mere denials of some one or more of the plaintifl''s allegations, when such denials are not verified; and this practice has been followed in several cases, mostly in the New York superior court." But the rule of the supreme court, at least, seems, upon good authority, to be settled to the contrary. Thus, in Sherman v. Bushnell, and Caswell v. J^ushndl," [*597] at the New York general term, the court, on full consid- eration, held that mere denials or negations are never to be treated as sham answers. That an answer is false, says the court, " is a part, and only a part, of the definition of a sham ' Keefer v. Thomas, 6 Abb. N. S. 42. himself as not entirely satisfied with '^ People Y . McOumher , 1^ N. T. 315; the doctrine, and thinks it should McGarty v. O'DonneU, 7 Rob. 431. receive some further consideration 2 Wayland v. Tysen, 45 N. Y. 381, before being adopted as the settled 283, qualifying ; People v. McGumher, practice. 18 id. 815 ; Allis v. Leonard, 46 id. ' See Fhury v. Boget, Fleury v. 688 ; Pasnacht v. Stelm, 53 Barb. Brown, Flammer v. Kline, 9 How. Pr. 651 ; Ward v. Waterhouse, 2 Rob. 653. 215, 216 ; and, also, Gonklin el al. v. * Thompson v. Pkw Railway Go., 45 Vandermort, at special term of the N. T. 468 ; DePorest v. Baher, 1 Abb. supreme court, 7 How. Pr. 483. In the N. S. 34; McGregor v. McChregor, 35 first two cases the answers were also How. 385 ; Winsloio v. Ferguson, 1 Lans. verified. They were all upon promis- 436. sory notes, and were denials of the alle- ' Newman v. Board of Superoisors, gations that the plaintiff was " the 1 Lans. 476. lawful holder and owner," etc. They * Van Alstyne v. PViday, 41 N. Y. 174. may, therefore, have been struck out, 'See note to Nichols v. Jones, 6 How. not merely as technically sham answers, Pr. 360. but as evasive or irrelevant, and as *■ See Miln v. Vose, 4 Sandf . 660, and raising an immaterial issue, subsequent cases. In Ostrom v. Bixby, " 14 Barb. S. C. 895, 7 How. Pr. 171. 9 How. 57, Justice Bacon expreases SEO. VI. J SHAM, lEEELEVANT AND TKIVOLOUS. 649 answer, it omits the essential part of the definition, namely, that the answer sets up new matter." That case has been followed by others holding a simiilar doctrine, and the result of all of them may be briefly summed up in the language of Justice Haeeis, in his recent opinion in Winnie v. Sickles :' "The power of the court to strike out a sham or false answer or defense is retained by the 152d section of the Code. The principles by which the court is to be governed in the exercise of this power have not been changed. Under the former practice, the plea of the gen- eral issue was never stricken out as false. The obvious reason for making this exception is found in the nature of the plea itself. It merely refers the plaintiff" to the proof of his cause of action, as he has alleged it to exist. It affirms nothing to be true, and, therefore, can scarcely be said to be a sham or false plea. So, under the Code, the defendant may deny, generally, the allega- tions of the complaint; when he does this his answer amounts to the general issue ; or, admitting some of the allegations, he may put others in issue by denying them. In neither case can the answer be said to be a sham answer. In either case the [*598] defendant * has a right to have the issue he has made tried in the usual manner." ^ This suggests two considerations which are worthy of note, and should not be lost sight of : First, that though an answer, verified, can in no case be struck out as sham or false, yet the verification will not prevent it from being treated as frivolous or irrelevant, for it is well said, in Reed v. Latson,' that the affidavit of verity has no tendency to make that material which is palpably frivo- lous / and second, that though a mere denial without verification, if good in substance or form, and taken upon a material allega- tion of fact in the complaint, will not be struck out as false or sham, yet, if taken upon an immaterial allegation, or if it other- wise raise an immaterial issue in the case, the party pleading it cannot save himself from a motion to strike out as irrelevant, or, in a proper case, a motion for judgment as frivolous^ merely ' 9 How. Pr. 217. » 15 Barb. S. C. 17. '' See, to the same eflfect, Limngston * Thorn & Maynard v. New T. rk V. mnUe, 8 How. Pr. 485 ; White v. Central Mills, 10 How. Pr. 19. In this Bennett, 7 id. 59 ; Dams v. Potter, 4 id. case the answer was evasive, heing a 230; Goedel v. Robinson, 1 Abb. Pr. denial, on information and belief, of 116. a fact presumptively within the knowl- 82 650 THE ANSWEE. [CH. V. because his answer purports to be nothing more than a denial. And upon this principle, I think, most of the eases can be [*599] reconciled. A party who, admitting all the * material allegations in the complaint, takes issue upon a merely immaterial averment, as, for example, if he should deny that a promissory note was made at a certain place, as alleged in the complaint, such issue, if not strictly sham or false, is clearly imma- terial ; and, if immaterial, irj^elevant, and as such should be struck out on motion. The subject of informal, evasive and immaterial issues has already been noticed in a previous part of this work, and, by reference to the cases there cited,' it will be seen that most of these defective denials were such as to raise immaterial, that is to say, irrelevant, issues in the case — issues which would have been laid aside entirely on the trial, and which, therefore, should prop- erly be struck out on motion, and not suffered to incumber the record or embarrass the opposite party .'' And if the denial be so palpably ineffectual for any purpose as to amount to nothing, and really to raise no issue at all, irrelevant or otherwise, it -might be regarded, if the plaintiff chooses, as frivolous merely, on [*600] a motion for judgment * under section 247.° Nor would a verification of such denial in any case cure the defect.* It will be seen, from the foi;egoing, that there is a difference in the mode of raising the objection, not only between a sham and an irrelevant answer, but also between an irrelevant and a frivo- lous answer — the one being the subject of a motion to strike out by section 152, and the other of a motion for judgment on account of the frivolousness of the defense by section 247. The adjudged cases clearly recognize this distinction. In Darrow v. Miller ° it edge of the party wlio answered ; and judgment, and not by motion to strike judgment was rendered on it as fri-oo- out, as in Lefferts v. Snediker, 1 Abb. loiis. But the decision was reversed Pr. 116. But I do not see why an at general term, on the ground that answer, raising such an immaterial the answer was not pal/paMy frivolous, issue, should not, within the principles 1 Abb. Pr. 187. above laid down and cases cited, be ' Ante, pp. 427-444. regarded also as irrelevant, and liable ' An answer merely denying a legal to be strucli out on motion, especially conclusion, as where the defendant where it is joined with other matter avers that the plaintiff is not " the law- constituting a valid defense. ful holder and owner of a promissory ' Sherman v. New York OentraX note," is regarded as a frivolous, as Mills, 1 Abb. Pr. 187. contradistinguished from a sham, an- ■* Seed v. Latson, 15 Barb. S. C. 9. Bwer ; and the remedy is by motion for ' 5 How. Pr. 247 ; see also Nichols v SEC. VI.] SHAM, IKEBLEVANT AND FRIVOLOUS. 651 is said that an answer may be so grossly impertinent or frivolous that the court cannot but see that it was put in for delay, or to perplex the plaintiff, instead of presenting a defense, and, in such case, it being a mere fraud upon the practice of the court, it may be treated as a sham, or false defense, and struck out ; but that where a pleading, though technically frivolous, does not appear to have been made in bad faith, the remedy of the party is by motion for judgment, under section 247, for, it is added, a party has the right to have any defense, honestly interposed, passed upon, not only in the court of original jurisdiction, but also in the court of appeals, and, therefore, the frivolous answer should be [*601] allowed to remain on the record. And, * though in Brown V. Jenison,' in the New York superior court, it was said that a frivolous answer might be struck out on motion, yet, in the later case of Hill v. Smith,' the judges of that court qualified this rule, and limited it to eases where the objection does not extend to the entire answer. But, if the whole answer be alleged to be frivolous, it cannot be struck out, the proper motion being, under section 247, for a judgment ; and for precisely the same rea- son given in Darrow v. Miller, that, " as the judgment given, even where such is the opinion of the judge or court, may be errone- ous, the defendant has the same right to have it reviewed upon an appeal as if given upon a demurrer ;' and, consequently, to enable him to exercise this right, the answer, instead of being stricken out, must remain upon the record." The same thing was decided in the subsequent case of Quin v. Charribers ;" if but a single defense be set up, and that applies to the sole cause, or to all the causes of action contained in the complaint, and the defense be frivolous, the motion should be for judgment, leaving the answer on the record ; if such defense be applicable to one only of sev- eral causes of action, or if other defenses be also inter- [*602] posed, it * may be struck out from the record as irrelevant.' Jones, 6 id. 357 ; Lefferts v. Snediker, issue was plainly immaterial or the 1 Abb. Pr. 116. defense manifestly groundless. ' 3 Sandf. 733. " 1 Duer, 673. ' 1 Duer, 649, 8 How. Pr. 149. ' This is entirely consistent with ^ The motion, it was said, is a sub- what was said in Reed v. Latson, 15 stitute for the demurrer, and raises Barb. 16, that probably the court substantially the same question; but always had the power of iirJAmg' OM* a it would not be granted, unless the frivolous pleading, as they had a sham pleading ; and see cases cited. 652 THE ANSWER. [CH. V. And, perhaps, in this consists practically the essential point of difference between an irrelevant and a frivolous answer; for it is evident that the one often, and perhaps usually, if not always, includes the other. An irrelevant pleading, says Justice Strong, in Seward v. Miller,' is one which has no substantia] relation to the controversy between the parties. An irrelevant defense, says Justice Sill, in Darrow v. Miller,' is one which may be true in point of fact, but is so impertinent, or so grossly frivolous, that the court cannot but see that the object is to delay or perplex the plaintiff instead of presenting a defense. An irrelevant answer, says Justice Willaed, in Harlow v. Hamilton^ is one which is good in form and true in- fact, but which has no relation to the cause ; as, for example, a bankrupt's discharge to an action for slander. Now, each of these definitions might very- well include also a, frivolous defense or answer ; such, for instance, as the case last cited, a bankrupt's discharge in an action [*603] for slander.* So, also, in an * action on contract, if the defendant should set up in defense an equal amount of damages claimed for an assault and battery. Indeed, the courts do not seem to have preserved in practice any intelligible line of distinction between an irrelevant and frivolous answer." Thus, in Oould V. Williams,'' an answer in the old chancery form, which neither controverted any allegation in the complaint, nor set up any new fact by way of defense, was thought to be irrelevant, and would have been struck out on a motion for that purpose ; while in Z,ane v. Gilbert,'' an answer which controverted no fact in the complaint and set up matter which, though admissible as ' 6 Ho-w. Pr. 313. also to be true, comprises matters ' 5 id. 247. -whicli might have constituted a defense ' 6 id. 475. in some other action, or under a differ- ^ Perhaps, however, the converse is ent state of facts ; that is, -which are not strictly true, and a frivolous -would -well pleaded in point of form, but not al-ways include an irrelevant which have no possible connection ans-wer. See Harlow v. Hamilton, 6 -with the present subject of the con- How. Pr. 475. But for all practical troversy, and, therefore, are manifestly purposes, I can see no very substantial insufficient as a defense to the action, ground of difference other than that Under this definition might be included above stated. I understand that a a simple denial, perfect in point of frivolous differs from a strictly irrele- form, but taken upon an immaterial vant answer in this ; the first, assuming allegation in the comEJaint. it to be true, and pertinent to the ^ But, see Kreiz v. th-ost, 5 Abb. N, action, clearly and beyond controversy, S. 277; Plant -v . Schuyler , ^ id. 146,7 constitutes no ground of defense, and Rob. 271. raises no issue capable of trial between ' 9 How. Pr. 51. the parties. The second, assuming it ' Id. 150. SEC. VI.] SHAM, IRRELEVANT AND FRIVOLOUS. 653 evidence in mitigation of damages, was unnecessarily pleaded, was held frivolous, and the proper course was said to be a motion for judgment. In Edson v. Dillaye,^ the motion was to strike out as false and frivolous all the answer to a complaint on a promissory note, except that part which admitted the making of the note ; and the court, regarding the matter as [*604:] ^frivolous, ordered judgment to be entered for the plain- tiff and his damages assessed ; while, in other cases, the terms "sham,'' "irrelevant" and "frivolous" have been used indiscriminately." [An entire answer or defense cannot be stricken out as redvmr dant. That term is properly applied to surplus or unnecessary matter contained in a cause of action or defense." An answer may not be irrelevant although it \)% frmolous^ for matter which is pertinent to the cause of action or defense is not irrelevant ; * although an entire defense may be foreign thereto and therefore irrelevant.' A defense is not irrelevant simply because it arose after the commencement of the action. ° A counter-claim cannot be striken out as irrelevant. If there is a defect in a counter-claim it must be reached by demurrer, or by motion under section 160 to make it more definite and certain.' When an answer is sham the proper method of obtaining judgment, after an order to strike it out, is to proceed as if no answer had been interposed.' A pleading is frivolous when by the decisions of the courts or the settled rules of law it is insufficient.'] If the views taken above, however, are correct, namely, that an answer properly irrelevant generally includes also a frivolous answer, a plain and uniform rule of practice may be adopted that will reconcile, in a measure, the conflicting decisions on this subject. The motion in all these cases, if the imperfect answer constitutes the entire defense, it is conceived, should generally be for judgment on account of the frivolousness of the answer under section 247. Or, if it be doubted whether the answer may ' 8 id. 373. McGregor v. McGregor, 35 How. 385 ' Brown v. Jenison, 3 Sandf. 373 ; Carpenter v. Bell, 1 Rob. 711. Fleury v. Boget, 5 id. 646 ; Bichardson ' Carpenter v. Bell, 1 Rob. 711, V. Wilton, 4 id. 708 ; Flammer v. Kilne, « Fattrech v. McKay, 47 N. Y. 426. 9 How. Pr. 316. ' De Forest v. Bakefr, 1 Rob. 700. s Famacht v. Stehn, 53 Barb. 650. * Collins v. Swan, 7 Rob. 633. " Famacht v. BteTm, 53 Barb. 650 ; 664 THE ANSWER. [OH. V. not strictly be considered irrelevant as contradistinguished from a mere frivolous defense/ then the motion may be, on the usual eight days' notice at special term, in the alternative for judgment on account of the frivolotisness of the answer, or to strike out the same as irrelevant ; and this, perhaps, is the safer course in all cases. If the defective answer be joined with one or more good ones, then, of course, the motion must be to strike out the same, and not for judgment, within the rule established in Mull v. Smith, and Quin v. Chambers, sv/pra. The disadvantage of moving to strike out an entire answer, when there are [*605] doubts as to * its proper character, consists in this, that the Code gives no authority to strike from the record a merely frivolous answer pleaded in good faith. The plaintiff, therefore, in order to succeed in such a motion, must show that the answer is not only frivolous but also irrelevant. "Whereas, if he moves in term, upon proper notice, for judgment, he may obtain it whether the answer is irrelevant or frivolous, on such terms as the court may prescribe in regard to permitting the defendant to answer over. If there be doubt as to the irrelevancy or frivolousness of the answer, the proper course to be taken is to demur.° [It must be palpably, and at first blush, sham and irrelevant."] This subject will be noticed in the following chapter which treats of the demurrer. SECTION VII. STJPPLEMBNTAL ANSWEB. The defendant is allowed by the Code to make a supplemental answer, by leave of the court, alleging material facts occurring after his former answer, or, of which he was ignorant when it was made." [*606] * This is in place of the cross-bill in the nature of a plea puis darien, and the supplemental answer in equity, and of the plea puis darien continuanoe at law. ' See Lefferts v. Snediker, 1 Abb. Pr. ' McCh-egor v. McGregor, 35 How. 166. 385 ; DeForest v. Baker, 1 Rob. 700 ' Sherman v. New Torh Central Smith v. Countryman, 30 N. T. 655. Mills, 1 Abb. Pr. 187, and see post, ch. •• Code, § 177. 1. § 111. SEO. Til. J SUPPLEMENTAL ANSWER. 655 In equity, a supplemental answer was allowed to correct an error — as a mistake in a matter of fact, or to set up facts of which the defendant was ignorant at the time of the answer ; or facts which he wished to set up in his answer, but was induced to leave out by the mistaken advice of his counsel.' A supplemental answer was also allowed, in some cases, to present new matter of defense occurring after the former had been put in. Thus it was held, that where, after answer filed, the defendant obtained an exemption of his person from imprison- ment under the act, he might file a supplemental answer to pre- sent that fact.' So where, in a suit for divorce, the complainant commits adultery after the answer of the defendant is put in, she will be permitted, if she applies immediately after the discovery of the fact, to set up that defense by supplemental answer.' She might also set it up, by cross-bill, in the nature of a plea puis darien continuance* And generally, in equity, the defendant might set up new matter of defense, which had arisen aftei- the cause was at issue by cross-bill, in the nature of a plea^ms darien continuance, and could not do it by supplemental answer,' [*607] as if the complainant *had released the defendant, or there had been an award made on reference after issue joined, etc' At law. — New matter of defense, arising after issue joined, might be pleaded ^t«'s darien continuance ;'' as that the plaintiff had given a release, or there had been an award after issue joined, or an accord and satisfaction ; or when two actions have been brought for the same cause, as against makers and indorsers of a promissory note, judgment satisfied in one suit might be pleaded puis darien continuance to the other suit.' The plea must properly be interposed before verdict,' or report of referees." It might be pleaded on the trial when the cause was called, or at any time after, before the jury have actually delivered the verdict." But an insolvent has been allowed to plead his discharge even ' 1 Barb. Ch. Pr. 165. ' Upon the subject, generally, see ^ Anonymous, Hopk. 27. Clinton's Dig. 2570. a 4 Paige, 432. *5 Johns. 392, 9 id. 221, 5 Pet. « Id. ; 3 Barb. Ch. 613. 232, Gould's PI. 124. ' 10 Paige, 485 ; 11 id. 18. ' 1 Cow. 42. 6 3 Barb. Ch. Pr. 128, Story's Eq. PI., '« 12 Johns. 218. § 893. " Graham's Pr. 396. 656 THE ANSWER. [CH. V. after verdict." [Although if too late for plea the remedy is by a motion for a perpetual stay of execution."] The plea was not required to be -verified, unless tendered at the circuit/ and it was put in without leave of the court. Its effect, when offered at the trial, was to suspend the further procee.dings in the cause, on such terms as the court might grant, as to costs. It was, however, in the discretion of the court to receive the plea or not, even after more than one continuance had intervened. [If seasonably pleaded the court is bound to receive it ; * if not the discretion of the court will be governed by circumstances extrinsic of, [*608] and which * cannot appear on the face of the plea.'] A plea puis darien continuance was not a departure from, but a waiver of the former plea, and no advantage could afterward be taken of it, nor could the plaintiff proceed thereon ; ° but this rule was qualified so as not to apply unless the party abandons the defense before relied on and assumes a new one.' If the plea was only an answer to a part of a claim, or went to one of several counts or causes of action, was a waiver of prior pleas only, pro tcmto.' The matters which might be thus pleaded, puis darien were such as occurred after the former pleading. There was, howevei", another rule at common-law, that it is important to notice here, namely, in regard to matter of defense arising after suit, but iefore plea actual pleaded. Such matter as, for example, a pay- ment or settlement, could not be given in evidence under the general issue, neither could it be pleaded technically in har of the action ; but it might be pleaded in bar of the further main- tenance of the suit.' This distinction was technical, and there seems to be no substantial reason why it should be regarded under the new system. And this has been so held in the recent case of Willis v. Chipp," in which the defendant was allowed to plead settlement and satisfaction after suit brought ; 1 9 Johns. 392. ' 10 Johns. 160, 19 Wend. 639. ' Oornell v. DaUn, 88 N. Y. 253. « 5 Pet. 224, 13 id. 136, 152, 10 3 9 Johns. 250, 1 Wend, 89. Wend. 675, 14 id. 161. •> Baiky v. Kay, 50 Barb. 110 ; Orms- ' 2 Wend. 300. hee V. Brown, id. 436 ; Stewart v. « 19 id. 699. Iddor, 5 Abb. N. S. 68 ; Smith v. « 20 Johns. 414, 5 Hill, 317, 2 Denio, Reeves, 33 How. 183 ; Waldham v. Ben- 321. der, 36 id. 181 ; Broome v. Beardaley, "> 9 How. Pr. 568. 3 Caines, 172 ; Sandford v. Sinclair, 3 Denio, 269 ; and see, post, 611, marg. p. SEC. VII.] SUPPLEMENTAL ANSWER. 657 [*609] * such matter, it -was held, constituted a full "defense" under the Code. The other general rules above noticed, both in regard to the common-law plea of puis dcvrien continuance, and to the equity supplemental answer, and cross-bill in the nature of a plea^za's darien, are, with some slight modifications, still in force, and are substantiall}' applicable to the supplemental answer of the Code. Thus, the Code permits a supplemental answer, in the nature of a plea^7M«5 darien, to be pleaded only on obtaining leave of the court to do so, as formerly imder the equity practice. Where, therefore, the matter does not arise, or is not discovered till at the trial, the court will stay proceedings and put the cause over on such terms as may be proper to enable the defendant to make his motion. The latitude and discretion given by the Code to the courts in respect to amendments do not apply, it seems, so far as to allow supplemental answers to be put in in cases other than those prescribed in section lYY. In equity, as we have seen, the supplemental answer was used to correct an error or mistake, or to set up facts which the party was induced to leave out by the mistaken advice of his counsel.' The Code, however, it seems, restricts the right to file a supple- mental answer, in all these cases of error, to the one class [*610] of facts mentioned in the above section, * namely, " of which the party was ignorant when his former pleading was made." It would appear, therefore, that the supplemental answer is not to be used to correct errors or mistakes, as it might have been under the chancery practice, but it is to be confined to its proper sphere of alleging facts material to the case, which either occurred after the former answer, or of which the party shall show himself ignorant at the time of the pleading. If the defendant has knowledge of the fact sought to be pleaded at the time of the former pleading, and neglects to do so, he cannot supply the omission by supplemental answer, or even, it seems, unless for special reasons by amendment." A distinction between the supplemental answer of the Code and the common-law plea oi puis darien continuance is noticed 5 Ho w. Pr. 420. = Houghton v. Skinner, 5 How. Pr. 430. 83 658 THE ANSWER. [CH. T. by Jiistice Geidley, in Drought v. Curtiss and Peake} The former is allowed on motion, whenever the facts forming the ground of the answer have occurred since the answer was put in, or where the defendant was ignorant of theni at the time of pleading the first answer ; the latter could strictly be pleaded only before or at the next continuance after the facts transpired. Where the facts, asked to be incorporated and pleaded in a sup- plemental answer, are an entire satisfaction of the cause [*611] of action, and * extinguish the plaintiff's right to prose- cute it, such as a transfer of the cause of action pending the suit to another, who has received satisfaction for the demand involved in it, it is the duty of the court to grant the motion. The M'ord may, in such a case, says the decision last cited, means vnust ; and it will make no diiference -whether the motion was made at the earliest day or not. It seems, however, even under the old system, that though a defense, by way of supplemental answer, was not a matter of right, if a term liad intervened since the happening, and the defendant has neglected to apply at the first opportunity, yet the court has discretion to allow it." This discretion has been liber- ally exercised since the Code. In a case at special term, not reported,' Justice Haeeis allowed a supplemental answer to be interposed, which claimed to set up as a defense that the plain- tiff's demand had become merged or extinguished by operation of law, resulting from the fact that, pending the suit, he had become, by purchase, under a foreclosure sale, the owner of real estate of the defendant, on which he held certain securities as collateral to the demand in suit ; and this, too, although after the happening of the fu;t, several terms had intervened, at which the motion could have been made. In regard to the equity supplemental answer proper, [*612] and the cross-bill in the nature of a plea * puis darien, the Code has doubtless intended to abolish such a distinc- tion, and designs to give the defendant, by supplemental answer, all the relief ho could have had in either form of pleading, except as heretofore noticed,' in regard to facts occurring after suit ' 8 How. Pr. 56. ^ Mrirxh v. BnrnhaH, Albany special ■' 4 Johns. 25.i, 10 id. 161 ; 19 Wend, term, November, 1854. 639 [See ante, 607, marcj. p]. " Ante, pages 609, 610. SEC. Til.] STIPPLEMEWTAL ANSWER. 659 brought and before answer, no supplemental answer can be required; but they may be pleaded generally in bar within the decision in Willis v. Chi'pp, supra} " Any facts," says the court in that case, " existing at the time the defendant answers, and which show that the plaintiff ought not to have a judgment against the defendant, may be inserted in the answer." This, of course, may include all defenses, whether legal or merely equita- ble, and generally any matter of counter-claim, except, perhaps, a set-ofi'in an action on contract. By section 150, amended Code, the set-off must exist at the time of the commencement of the action. Suppose, after suit commenced on contract, and before answer, a cause of action accrues to defendant against the plain- tiff for breach of another contract, can he avail himself of such defense in the same suit % The cause of action must exist at the commencement of the suit, and could not, therefore, be directly pleaded in defense as a counter-claim ; but after answer, might it not be allowed to be set up as a new fact material to the case in a supplemental answer? Payment after answer may be ['"'613] pleaded,'' and settlement of suit, * and, generally, any equit- able matter of defense ; and why should set-off be exclud- ed ? Tliere is certainly an equitable right with the defendant, inde- pendent of the Code, to have a claim against the plaintiff's set-off against the plaintff 's demand of a like nature, as in equity, one judgment miglit be set off against another ; and I do not perceive why such a set-off, occurring after the answer, at least in a con- tract directly bqtween the parties, and where some peculiar equity exists, as insolvency, etc., should not be allowed by way of sup- plemental answer. The court, before granting leave .to put in a supplemental answer, must be satisfied that the flicts to be set up are material to a defense. A release from the defendant to the plaintiff, in an action to recover personal property, cannot be pleaded ^.^wis darien to the sheriff's action on the replevin bond.' [A submis- sion to arbitration is merely a discontinuance and cannot be pleaded. The remedy is by motion and not by plea.'] But an arbitration and award, as well as an accord and satisfaction, are ' 9 How. Pr. 5'i8. ' 13 Wend. 303. 2 Brown v. Micliardson, 7 Rob. 57 ; "3 Hill, 387. Ormsbee v. Broion, 50 Barb. 436. 660 THE ANSWER. [CII. V. defenses, and, if occurring after the answer, are proper to be set up in tlie supplemental answer. Nor need it be matter which will constitute an entire defense. It is sufficient if it be a fact material to the case — a fact which will go toward establishing a defense. Thus, in JRadley v. Houghtaling,^ in an action for assault and battery. Justice Paekek allowed a supplemental answer to be put in, setting up that, since the commence- [*614] ment of the * suit, an action for slander had been com- menced by the defendant against the plaintiff, in which the plaintiff set up the same assault and battery, in mitigation of damages, whereby the verdict was reduced to six cents. "I think," he remarks, " the facts which transpired on the former trial are material to the case. How far they will go toward establishing a defense it is not necessary to say. That question will be decided at the circuit in such a form as to afford either party an opiDortunity to review the decision." Leave was granted to put in such answer within ten days, with twenty days to the plaintiff to reply. A supplemental answer differs from an amended answer. Cir- cumstances happening after answer are not to be set up by amendment but should be brought before the court by a supple- mental pleading.'' This was held to be the rule in regard to the complaint. Thus, where one of the defendants transferred to a person, not a party to the suit, his interest, after the action was commenced, it was held that the plaintiff could not amend his complaint but must apply for leave to make such person a party by supplemental complaint.' A similar rule, it is presumed, applies to the answer ; ■" the fact, however, as we have seen, must occur after the former answer and not intermediate the time it was put in and the commencement of the suit.' ' 4 How. Pr. 351. * Hastings v. MeKinley, 1 Smith's '' Madison, etc., V. Baptist, etc., 2 Roh. IS!". Y. Com. PI. 27)^ [affirmed, Seld 643. notes, Oct., 18.")3, p. 10]. ' Ilornfager v. JJornfager, 1 C. R. ' Ante, marg. p. 475. N. S. 180. CHAPTER V.(A) DEFEiSrSES, [It was inteuded to give a list of defenses and the law thereof Bomewhat similar to the new chapter upon cotnplaints. After collecting some of the materials therefor, it was found impossible to do so for the reason that the volume would therehy be swollen to undue proportions. Only a very brief article upon a few defenses can be given. Abatement. — Misnomer must be pleaded in abatement ; ' so that defendant, when arrested, was attending com't, and, therefore, privileged from arrest, must be taken advantage of by motion for his discharge or by plea in abatement ; " so that the plaintiff, in a suit commenced by attachment under the Revised Statutes, is a non-resident of the State, may be so pleaded." Submission of the matters involved in an action to arbitration usually operates as a discontinuance per se ; * otherwise if the parties expressly agree that it shall not." It is not sufficient, under a plea of non-joinder of parties p)laintifF, to show that the note in suit was given to the plaintiff, one of the members of a firm, with the assent of the firm for moneys loaned from its funds under a contract therewith.' Xon-joinder of a partner is no defense to a firm note by its express terms joint and several ; ' so it is no defense that defend- ants partner is not joined unless he contracted as a partner.' The answer should allege that the party claimed to be necessary is living ; ° or if a corporation that it is still in existence. " If the answer do not allege that the party claimed to have been improp- erly omitted be living, the error is cured, if tlie fact bo proven ' miUr V. Stettiner, 32 How. .518, 7 * Bud v. Dewcji, 32 How. 343, and Bosw. 693 ; Trader v. Eighth At. R. R., numerous caaes there cited. 3 Keye.s, 497, 6 Abb. N. S. 48 ; MorUy ' Buel v. Barn/. 33 How. 343. V. Law, 3 Brod. & Bing. 34. See Bent ' Mi/ndcrie v. ,Snimk, 1 Lans. 488. V. Bent, 43 Verm. 43. ' Snotc v. Howard, 35 Barb. .5.5, - Randall V. C'randaU,liIli\i,U2. « Peek v. Comng, 1 Denio, 333; ■* DiiiriH'H V. Plurrdx. Barik, Hill, Gookingham v. Laslier, 38 Barb. 656, 3 397 ; but, see Matter of ilarti/, 3 How. Keyes, 454. 308, 3 Barb. 436 ; Ready v. Stewart, 1 ' Bvrgesx v. Ahhott, 1 Hill, 476, 6 id. Code B. N. S. 3t)7. 135 ; Taylor v. Riehards, 9 Bosw. 679. '» State X. Woram, 6 Hill, 33. 662 JDEFEKSES. [CH. VA. without objection.' If the non-joinder of a necessary plaintiff appear upon the face of the complaint, the defendant may avail himself of the defense upon the trial, without pleading it in abate- ment,'' or may demur," even though the complaint do not show he be living." If an executrix marry after suit brought in her favor or against her, as such, the suit abates until the husband be made a i^arty ; ° although in New York after verdict, and in certain other cases, a suggestion of the fact may be made upon the record and the suit proceed.' Accord and satisfaction. — If a debtor give an order on a third person, which is accepted and paid, it is a good accord and satisfaction.' So payment in goods at an agreed price;" and so where the debt is barred by the statute of limitations, pay- ment of part, in satisfaction, will not revive the balance.' It is a good accord and satisfaction if the creditor, by the agreement, acquire the security of the obligation of a third person ; this is sufficient ; '" and if accepted to be in full, if paid when due, the condition is waived by accepting payment after maturity." So if the debtor give secnrity.'" .Payment of part of a debt before it is due, in full payment of the claim, is a good accord and satisfac- tion." But the acceptance of an obligation of a third person does not operate as an accord and satisfaction or payment unless ex- pressly so agreed ; " even though a receipt in full be gi\'en." Other- wise if there be such an agreement," and, it seems, the check of ' Wooater v. Chamberlain, 28 Barb. Freeland v. Van. Campen, 36 How. 29 > 603. Phillips V. Bercjer. 2 Barb. 612, 8 id- '' Rice V. HoUenheck, 19 Barb. 664. 527 ; Freeland y. Van Campen, 36 8 Burgess v. Abbott, 1 Hill, 476 ; How. 29. Eaton V. Balcom, 33 How. 81. " Conkling v. King, 10 N. T. 440. * Mdon V. Balcom, 33 How. 81 ; but, " Phillips v. Berger, 2 Barb. 60S, 8 see Schofield v. Van Syckle, 23 How. id. 527. 97. " Bowker v. Ohilds, 1 Am. Law Reg. * SiDan V. Wilkinson, 14 Mass. 295 ; N. S. 504, New York court of appeals. Qiiackenbush V. Leonard, 10 Paige, VSl. Arnold v. Park, 8 Busli. (Ky.) 3. In * 2 R. S. 387-8, g§ 8-13, 2 Edm. Stat. Vermont it has been held that the sur- 462-8. render of a note, and the acceptance ' Ncvins T. Depierres, 1 Edm. Sel. of one for a less amount in payment, Cas. 197 ; Btagg v. Alexander, 55 Barb, is equivalent to a release under seal. 70. Draper v. Hitt, 43 Vt. 439. ' Oaffney v. Chapman, 4 Rob. 275. " Darnell v. Morehouse, 86 How. 511 ; ' Berrian v. Mayor, 4 Rob. 5;'>8; Gibson v. Toby, 53 Barh. 101. United States v. Wi'ldn; 13 Wall. 254; " Busmell v. Poineer, 4 Abb. N. S. Morgan V. Roiclands, 2 ling. Hep. 611; 244; Gibson v. Toby, 53 Barb. 191; L. li., 7 Q. B. 493, and note, 2 Eng. K. Turner v. Bank, 3 Keyes, 425. 617. '" Roberts v. Fisher, 53 Barb. 69. '" Kveler v. Salisbury, 27 Barb. 485 ; OH. VA.J DEFENSES. 663 the debtor may be received in discharge of his obligation.' A mere parol release of a debt, without consideration, is void." An unsealed receipt by one of two joint creditors, expressed to be in full of his half of the debt, but for a sum of money less than a moiety, and without any other consideration, does not split the demand, and constitutes no bar to a recovery by both creditors of the amount due. If the creditor giving the receipt subsequently give a release, under seal, expressing a new consideration and releasing the debtor as to a moiety, the misjoinder of the releasor may be cured at the trial by striking out his name, and the other creditor may recover his moiety.' A father may release to his son, without any consideration, except natural love and affection.* A debtor cannot rely upon a parol agreement of another to pay his debt, as such agreement is void by the statute of frauds. There nmst be, by an arrangement between all the parities, a substitution of such third person in his stead as the only debtor, or there must be a performance of the agreement. Willingness, by such third person, to pay, is not sufficient." Payment, by the debtor himself, of less than the amount of the debt, does not extinguish it, although the creditor expressly agree to receive it in full," unless the transaction be of such a character that it amounts to a compromise of an honestly disputed claim.' A new agreement without performance is not an accord and sat- isfaction, unless made in lieu of the former ;' an executory agree- ment for an accord and satisfaction is not a bar, although performance be tendered, if it be not accepted ;° so a plea, that the amount of plaintiff's claim was allowed him on settlement between the parties, is not good. The plaintiff had a right for the support of his house ; the defendants, in working a mine thereunder, removed the strata of minerals without leaving proper • Turner v. Bank, 3 Keyes, 425. ' Hammond v. Christie, 5 Rob. 160. '' Doty v. Wilson, 5 Lans. 7. * Clough v. Murray, 3 Rob. 7. This ' Garrington v. Croaker, 4 Abb. N. S. is a very carefully ronaidered case, 335. « Taton v. Alcott, IG Barb. 598 ; Rose ■* Arnold v. Park, 8 Bush. (Ky.) 3. v. Daniels, 8 R. I. 881 ; but, see ' Buchanan v. Paddleford, 43 Vt. Dolsen v. Arnold, 10 How. 528 ; Balde 14. V. Smith, 5 Ch. Sent. 11 ; Osborn v. '• Biinge v. Konji, 5 Rob. 1 ; Phillips Riibbiim, 37 Barb. 481 ; the reversal of V. Bn-ger, 2 Barb. 613; Garcey v. this case (36 N. Y. 365) proceeded upon Jurris.'S'i id. 179; Titsworth -v. Hyde., different grounds. Phillips^. Berger, r.l 111. t;86; Rose v. Daniels, 8 R. I. 2 Barb. 012. ':;S1. 664 DEFENSES. [CH. T A. pillars. Plaintiff commenced an action which was compromised bj defendants repairing the damages to the satisfaction of a sur- veyor, which they did ; held, a good answer to another action for a subsequent sinking af the house. ' Administrator. — A plea by an administrator, that before he had any notice of plaintiff's claims he had fully administered the esiate, is no defense." Advancement." — If a parent make an advancement — even though by a verbal agreement — to a child, it is a good defense to his action for his portion of the estate, though the portion sought to be recovered be real estate ;* although an advancement should primarily be chargeable upon the real estate.' The fact that money or property, delivered to a child or wife, was intended as au advancement, may be proved by the declaration of the parent ; ° unless such evidence contradicts a writing;' the presumption is that it was an advancement ; ° and the language of a will may make it such, although a note was given which the testator in- tended at the taking should be paid.' Adverse possession. — The statute which makes a grant of land held adversely void, only applies to so much of the grant as covers the lands so held.'" Arrest, exemption from. — It is a valid defense to an action against a sheriff for not arresting a party ; that he was exempt from arrest." An ofHcer who justifies an arrest without warrant, on a suspicion of felony, should set forth the grounds of the sus- picion, so that the court may judge of them whether they afford probable cause or not."' Assault and battery. — It is a good plea to an action of assault ^ Aicldin v, TfiKiaTOS, 10 Excheq. 259. Me. 214; Estate of Gluirles Beiaeea, 3 ^ Goramissionem of Education v. Brewst. 314, 7 Pliiladelpbia R. 498. Lougliniin, % Irish L. 716; Baggott ' J'er/-)/ v. /)(K/ton, 31 Barb. 519. V. Boulger, 2 Duer, 160, 3 R. S. 89, » Hicks v. GildersUeve, 4 Abb. 1 ; ^§ 39, 40; 3Iuorehouse v. Ballou, 16 TillertsonY. Race,2'ii^.T. 133; Wool- Barb. 294, 1 Chitty's PI. 489. ery v. Woolen/, 29 Ind. 349. 3 As to wbat is an advancement, see ' Ghnse v. Ewing, 51 Barb. 598. Berry v. Morse, 1 House of Lords Cases, ' Welton v, Divine, 20 Barb. 9 ; 70; West's Ch. Ill, note, Diinlop's ^YooUry y. Woolen/, 2^ lTiA.2iSl. note, 1 Sim. & Stu. 3 ; id. to Upjohn v. » Tillotson v. JRncc. 33 N. X. 122 ; Upjohn, 7 Beav. 153; timith v. Smith, Cluise v. Ewing, 51 Barb. 597. 59 'iMe. 314. '" Toirle v. (fmilJi, 3 Rob. 489. ^ Parker v. McClure. 36 How. 301, 5 " People v.Gampbell, 40 N. Y. 133. Abb. N. S 97 ; Smith v. Smith, 59 " Wivie v. Ghaffee, 5 Am. R. 574, 8 R. I. 573. en. VA.] DEFENSES. 665 and battery, that one A was possessed of a close in wliicli the plaintiff was making a noise, and that the defendant, as a servant of A, and by his command, requested plaintiff to depart, which he refused to do, whereupon defendant laid his hands upon plain- tiff, doing him no unnecessary injury.' The plea of smi a&sauli demesne must show that the injuiy was necessarily inflicted by defendant in his own defense, and if the plaintiff' prove an excess of force it is no defense." It is good defense that the plaintiff unlawfully entered upon defendants premises and possessed him- self of the defendant's goods, when the defendant assaulted the plaintiff and ejected him from said premises, using no more force than was necessary to retain his property and prevent its removal." The degree of force necessary depends upon the exigencies of the case ; ' so it is a good defense that the plaintiff' was disturbing a religious meeting and tliat defendant removed him therefrom, using only sufficient force for the purpose ; * so that plaintiff was defendant's apprentice and conducted himself improperly, where- upon defendant moderately chastised him.' Assignee. — It is a good defense to an action by the assignee of a mortgage that the mortgagor had before the assignment rendered services for the mortgagee which he agreed to apply upon it.' Attorney. — An executor or trustee, who employs an attorney, is liable to him personally, and it is no defense that the attorney rendered the services for the defendant in his representative capacity.' Award. — It is a good defense to an award that the arbitrators proceeded without notice to the defendant, or that they made the award before the defendant had closed his proofs.' An answer which alleges that the arbitrators, in computing the amount, made a clerical error in computing the amount to be awarded, and tliat the award is the result of such clerical error is good on demurrer, although it do not show what the character of the mistake was." Bail. — A sheriff', who arrests a defendant who does not give ' Piggott V. Kemp, 1 Cromp. & Mees. * Hartley v. Tatham, 1 Rob. 246. 197. ' Bowman v. Tallmnn, 2 Rob. 385, 2 Dean v. Taylor, 11 Exclieq. 68, affirmed, 41 N. Y. 619 ; Ferrier v. » Oyre v. Gulve, 47 Barb, 592. Myrkk, 41 id. 315. ■■ Wall V. Lee, 34 N. Y. 141. » Garvey v. Carey, 4 Abb. N. S. 159, ° Penn v. Ward, 2 Cromp., Mees. & 35 How, 282, 7 Kob. 286. Rose. 338. 84 666 DEFENSES, [CH. V A. bail or make the deposit required by statute, is liable to the plain- tiff, after an execution against the defendant's body is returned non est, for the amount of the judgment, and it is no defense that the defendant is insolvent.' Bailee. — It is a good defense by a bailee that the property intrusted to him did not belong to the bailor but to a third person, who had taken the goods, or that they had been taken from his possession under an attachment against the true owner ; ' and so when the property is taken from the bailee by legal process against the bailor if the latter be immediately notified of such taking ; " although this will not protect the bailee when he has, before the taking, become liable by reason of not having delivered the property, or not having given notice to the consignee ; ■" so it is a defense to an action by the consignee that the consignor directed the carrier to deliver the goods to a third person if the consignee do not object.' Bankrupt discharge. — A debtor, who relies upon a bank- rupt discharge in another country, must plead the law which authorizes it, such proceedings thereunder as authorized the dis- charge, and the discharge itself, or facts which operate as an extinguishment of the plaintiff's claim; ° although under our own statute a shorter method of pleading a discharge is allowed.' A plea in bankruptcy is not good as a defense against an action to rescind a contract on the ground of fraud ; ' but it is good although plaintiff did not have notice of the proceedings, if the neglect to notify him was not willful or fraudulent ; " nor if the creditor has consented to such omission." If, however, the omission to notify the plaintiff of the proceedings in bankruptcy be fraudulent the discharge is invalid as against him.'' > Beimel v. Lynch, 3 Rob. 448. » Hubhell v. Cramp, 11 Paige, 310; * Huntington v. Douglass, 1 Rob. 304, Small v. Graves, 7 Barb. o7ti; A mcrkan, 1 Abb. N. S. 385 ; Tabor v. Gardner, 6 etc., v. Son, 3 Abb. N. S. 3S3, T Bob. Abb. X. S. 148. 333 ; Symonds v. Barnes, 11 Am. Law 3 BHven v. Hudson Bimr E. R., 36 Reg-. N. S. 431, 59 Me. 191 ; Payne N. Y. 403. V. Able, 4 Bankruptcy Reg. 67 ; Barnes * Mierson v. //«/)'■, 3 Sweeny, 561 ; v. Moore, 3 Am. Law Times (folio) 93, see Mc Andrews. ll7/,Woc/;,3 id. 633. by tlie Sup. Ct. of Cincinnati to the ' Piatt V. Wells, 3 Rob. 101 ; Krulder contrary is not good law. V. Ellison, 47 N. V. 36. '" In re Wetmore, 3 Am. Law Times ' PhiU2Je V. ,/inins, 3 Rob. 730. (folio) 105; In re Needham, 1 Lowell's ■ United States Banltrupt Law, § 34. Dec. 309. « Smith V. Babcock, 3 Woodb. & Miu. " Bachclder v. Low, 43 Verm. 663. 217. CH. VA.] DEFENSES. 667 Broker. — In a suit by a factor or broker for advances made upon property consigned to him, defendant pleaded tliat plaintitf was acting as a factor for defendant, and as such had in his posses- sion a certain large quantity of leather belonging to defendant of a certain value. That before that time defendant had instructed plaintiff not to sell such leather at less than thirty cents a pound over and above costs and charges ; but that plaintiff, in violation of such instruction, sold the leather for thirty cents a poimd, sub- ject to all costs and charges, wherefore the price of the leather was reduced to twenty cents a pound above costs and charges, and demanded judgment for a certain amount of damages. Held, a good counter-claim.' Canadian judgments. — Judgments rendered in Canada are only priTna facie evidence, and, in an action upon such a judg- ment, the defendant may set up any defense or counter-claim, except where he appeared in the cause and was heard, and gave evidence therein." Carrier. — A domestic carrier in order to discharge himself from liability must transport the goods to their destination, notify the consignee of their arrival, and, if not called for M'ithin a reason- able time, store them for the benefit of the consignee.' If a carrier from a foreign port he must land the goods at the time and place and in the manner prescribed by the custom of the port, giving notice to the consignee, if it be usually given at the port. If not called for by the consignee he must usually store the goods on his account.' Collector of an estate. — Although an equity suit by an administrator lies against a tcmjDorary collector to compel him to account, yet the pendency of proceedings before the surrogate for an accounting, if set up by answer, is a defense.* Consideration, want of. — -Where the defendant relies upon the want of consideration of a contract which, on its face, shows one, he must plead such want of consideration ; so where he interposes an agreement which does not on its face show a consideration he must allege and show one. A promise by the lessor, after the making of the lease, to make a deduction from the rent on account ' Mooney v. Misser, 34 Ind. 373. 474 ; Mierson v. Hope, 2 Sweeny, 568 '' Laws N. Y. Id68, vol. 2, p. 1233. McAndrew v. WhiUock, 2 id. 033. ' Atlantic, etc., v. Johnson, 4 Rob. <■ Ghristy v. Libby, 5 Abb. N. S. 200. 668 DEFENSES. [CH. VA. of damages sustained by the lessee, from the leaky condition of the building, is without consideration and is no defense to an action to recover the rent.' The honajlde compromise of a disputed claim is a good con- sideration for a promise ; and a plea that, at the time of the making thereof, no money was due to the plaintiff is invalid." The claim must be doubtful and not entirely without foundation ; ' but the surrender of an instrument, wrongfully obtained and held, and which a court of equity would order surrendered, ia no con- sideration for a promise.* A mere agreement to forbear prose- cuting a suit on a claim which is clearly invalid, without any compromise of the alleged claim, is without consideration. An agreement, by a beneficiary under a will, to pay an heir a certain sum if he will not oppose the probate of the will, is valid ; ° but it must be averred and shown that there was some ground for opposing the probate of the bill or some doubt as to its validity. A verbal agreement, for the sale by A to B of wheat amounting to over $50, none of the wheat being delivered and no part of the price paid, is void by the statute of frauds. Such a void con- tract is not a sufBcient consideration for a promise, by B to A, for a part of the amount claimed by A as damages for non-perform- ance of the contract." An agreement bj' one to pay a joint debt of himself and another, by applying thereon a note held by him against the payee, is valid if based on a good consideration. The creditoi''s agreement for delay, or the agreement of the joint debtor and the creditor, furnishes a good consideration." To an action on a co'\enant, made by defendant in consideration of his daughter's marriage, the defendant pleaded that the marriage Avas null and void by reason of the impotence of the husband, without stating that it had been avoided by the sentence of any court, or 1 Walker v. Gilbert, 3 Rob. 214. » Crash/ x. Wood. G X. Y. 369. ■' Callisher v. Bischoffsheim, h. R., 5 ' Gould v. Arin.strnnf/. 2 Hall, 366. Q B 449 ; Oekford v. Barrdi, 30 « Palmer v. Xorth, :!o Barb. 283. Weekly Rep. 116 ; Biehrell v. Cotton, ' Prater v. Miller, 2.) Ala. 330 ; Bushy Hob. 316 but see Williams's note ; T. Caiioimi/, 8 Md. 5'). Sherman, v. Barnard, 19 Barb. 303; * Hooh-e'r v. /inrtft, 26 Wis. 5!1 ; -S* Gould V. ^rmsaOTS, 55 Barb. 889. Bacon's Abr., title Executors, E. 13; Bigelow's Exr. v. Bigelow, 4 Ohio, 147. f572 DEFENSES. [CH. V A. Extension of time. — If a creditor accept the payment of interest in advance, on a demand already due, and agree to extend the time of payment, the agreement is valid.' But a promise by the debtor that he will not pay the debt until a future day named, and will then pay the same with interest, is not a good consider- ation for an agreement by the ci'editor to extend the time of payment ; " nor is the payment of part of the amount due a good consideration for an agreement to extend the time for the payment of the balance." Forgery. — The defense, that a forgery was committed by filling up a check or note for more than it was originally given for, is not available to a maker who negligently left a blank between the words indicating the amount and the word " dollars." * So as to one who signs a paper partly written with a pencil, so that a por- tion of it can be erased." Former suit. — The dismissal of a cause on account of defect of parties, or before the verdict of a jury, is no bar to another action for the same cause." So a verdict on the ground that the cause of action was not due at the commencement of the action.' Otherwise if the cause of action were then, in fact, due, although the verdict was erroneously rendered upon that ground.' A dismissal on the merits is a bar," though without prejudice." It has been recently held in England, in the exchequer chamber, that Judgment recovered against one of several wrong-doers, with- out satisfaction, was a bar to an action against the others ; '° but in most of the States the recoveiy of a judgment would not be a bar without payment or satisfaction thereof," and even then it is no bar if the cause of action was such, iu its nature, that it could ' Wakefield Bank v. Truesdeu, 55 ' Qiiarkeribusli v. £■/*'(■, 5 Barb. 469 ; Barb. 603. Wilro.r v. Lee, 26 How. 418, 1 Abb. ■' Kelloqg V. Olmsted, 25 N. Y. 189. N. S. 250, 1 Rob, y5o. See llaUiday v. Hart, aO id. 474. » Morr/an r. Phimb, 9 Wend. 287. 3 Ilallida'u v. Hart, 30 N. Y. 474. « Boxiirick v. Abbott, 40 Barb. 331, 16 ■• Oerrard v. Haddan, 5 Am. Rep. Abb. 417. 412, 67 Penn. 82 ; but see Sorlrtr-Gen- '^' Brinsmeadx. Harrison, S'Eng.'Re-p. eral v. Metropolitan Bank, 31 Weekly 883, and see note, p. 390. Rep. 335. " J)e.rter v. Brmit. 16 Barb. 337; Wies * Jliirci:;/ V. Smith, 55 111. 234. v. Fanning, 9 How, 546 ; Linngston v. * W heeler v. RncJcman, 35 How. 350, Bis/iop, 1 Johns. 390 ; Kasson v. People, 7 Rob. 447; Andnhon v. E.irehinr.ete.. 44 Barb. 347; 3 Eng. Rep. 390, note, 27 X. Y. 216 ; Coit v. Beard, 33 Barb, where the cases are collected. :!57; Dexter 7. Clark, 35 id. 271, 23 How. 289. OH. V A.J DEFENSES. 673 legally exist against only one person, and that person be the de- fendant in the second suit.' And so a recovery against a firm, for goods sold, is no bar to an action against one of them for frand.' If one of several wrong-doers pay part of the damages, with or without suit, such payment, in a suit against another of them, may be deducted from the damages," unless it were received in full satisfaction of the injury, and the party paying were re- leased, when it would be a bar ; for a release of one joint wrong- doer is a satisfaction as against all.* If judgment be recovered against one wrong-doer, and he be imprisoned on execution and discharged by consent of the creditor, it is a satisfaction as to all.' In an action of trespass, quare clausum, where the taking of per- sonal property is alleged by way of aggravation, a recovery and payment thereof vests title to the personal property in the defend- ant." If a suit be commenced by one partner for an accounting and settlement, a suit will not lie for the same purpose by the other, although he ask extended relief.' An attorney who prosecutes a suit on a note, in the name of another, is not estopped in a suit thereon, in his own name, by a judgment in the former action. His acts in that are simply evidence upon the question of his owner- ship." In a suit in one court for damages on account of a fraudulent warranty, the court will not compel the defendant to discontinue a suit by him in another court for part of the unpaid purchase- money or stay proceedings therein.' A recovery for one cause of action will not bar the other." Otherwise if the causes of action or defenses be identical/" ISTor will a judgment against one for a continuing nuisance bind him, if he have transferred the property without warranty, as to the nuisance or any interest in its continuance." It has recently been held in Yer- mont,''' substantially disapproving of a couple of cases in New York," that a surety who has notice of a suit is prima facie ' Matthews v. Lawrence, 1 Denio, 212. ' Smith v. Smith, 50 N. H. 212. * Morgan v. S/cidmore, 55 Barb. 263, ' Ward v. Gore, 37 How. 119. affirmed by court of appeals, Nov., ' W/ieeler v. Ruckman, 1 Rob. 408. 1870, 2 Alb. L. J. 457. » Liftchild v. Smith, 7 Bob. 806. ' Merchants' Sank v. Gurtiss, 37 '" Harris v. Hammond, 18 How. 123. Barb. 317. " Hanse v. Coimng, 1 Lans. 288. * 3 Chitty's PI. 1061a, 1 Pars, on i' Spencer v. Dearth, 43 Vt. 98. Cont. (5tli ed.) 37 ; Oarrington v. " Douglass v. Howland, 34 Wend. 35 ; Crocker, 4 Abb. N. S. 335. Jackson v. Qriswold, 4 Hill, 623. ' Kasson v. People, 44 Barb. 347. 85 674 DEFENSES. [OH. V A. bound by an adjudication against or in favor of the principal debtor, and that the same rule applies to joint and several con- tractors. Fraud. — It is no defense, in an action on an undertaking, given in discharge of an attachment, that the defendant was induced to execute it through the fraud of the party against whom the attachment was issued, if the plaintiff was ignorant of any false or fraudulent representations by such party.' Fraud must be pleaded as a defense. Under plea that the goods were not the pkintiff 's, defendant cannot show that the sale to the plaintiff was fraudulent." Frauds, statute of. — ■ It has been held that where a tenant verbally agreed to hire lands for fourteen years, and was, by the terms of the lease, to have the crops then growing on the premises, which he cut and removed, the contract being void by the statute of frauds, the landlord could not recover therefor.' Plaintiff had contracted to supply goods to C, to be paid for on delivery. desiring credit, defendant (who had an interest in the performance of the work upon which the goods were to be used) promised the plaintiff if he would supply the goods to C on a month's credit, and would allow defendant three per cent upon the invoice, he would pay him cash and take C's bill without recourse. Held, within the statute." When the pleading alleges an agreement which would be within the statute, unless in writing, it will be presumed to be a written agreement, and, if denied, such an one must be proved.' An agreement, to employ a person for one year, to commence in the future, is void, unless in writing, and the statute need not be pleaded affirmatively if the agreement be denied.' But if A hire B for one year, and he works that, and then continue on the next without any new contract, the jury may find an agreement to employ B for another year, and as the new 1 Coleman v. Bean, 3 Keyes, 94, 97, Vaughn v. Hancock, 3 Com. B. 766, 54 32 How. 370, 381. The head note in Eng. C. L. How. misstates the facts; the fraud was ■* Mallett v. Bateman, 16 C. B. N. S. not claimed to have been committed 530,111 Eng, C. L.; Brown y. Weber, by i'h.e plaintiff's ag<-nt, but by the 34 How. 306, affirmed, 38 N. T. 187; defendants in the attachment suit. Mavley v, Gragen, 105 Mass. 445. ' Howell V. Wliite, 1 Mood. & Rob. ' Lieingstrm v. Smith, 14 How. 490 ; 400. Johns V. Norris, 32 N. J. Eq. 109. 2 Earl of Falmouth v. Thomas, 1 " Amburger v. Marvin, 4 E. D. Smith Cromp. & Mees. 89, 3 Tyrwh. 36; 393. CH. V A.J DEFElSrSES. 675 year cannot commence until the expiration of the old the statute does not apply.' It is not sufficient to take the case out of the ■statute that goods sold be delivered by the seller ; the purchaser must accept tliem.^ Gift.' — A gift from husband to wife is not good, as against the creditors of the husband, if the wife immediately return it with instructions to use it as her agent. To render a gift valid there must be a positive change of possession, so the donor is in no position to repossess himself of the subject-matter of the gift or to re-call it." Guardian's lease. — The lease of a guardian in socage is only good so long as his guardianship continues. On the appointment of a new guardian he may elect to terminate the tenancy.' Guaranty. — A guaranty to secure moneys advanced within twelve months is countermandable ; ° but a continuing guaranty binds the executor of the guarantor for goods sold after his death.' Illegal contract. — A contract by a liveryman to let a horse for pleasure, on Sunday, is illegal and void;' but if the hirer willfully injure the horse he is liable." So an agreement by the lessee of a hotel to lease the bar of the hotel to another and to sell to him a right to sell liquors under the lessee's license is illegal and void." An agreement by an attorney to carry on a law suit and pay the expenses thereof is not, since the Code, illegal ;" nor is an agreement to sell and deliver goods at the buyer's option, of which the seller is not the owner, necessarily so ; ^'' an agreement by one of two rival lines of railroads not to extend its line beyond a certain point is illegal ; " one who sells goods to a native of another country may recover the price in the fornm of the vendee, although he (the seller) knew the vendee intended to smuggle them into his own country." When two parties carry on a part- ' Tatterson y. Suffolk, 106 Mass. 56. ' Bradbury v. Morgan, 1 Hurl. & Colt. ' Stone V. Browning, 44 How. 131, 249. Commission of Appeals. * Nodine v. Dolierty, 46 Barb. 59, 5 ^ Upon tlie subject of gifts, see Am. Law Reg. N. S. 346, and note. Moak's note to Clarke's Ch. 317, new ' Nodine v. JDoherty, 46 Barb. 59, 5 edition. Beak v. Beak, 3 Eng. R. 390, Am. Law Reg. N". S. 346. See Leopard, 398, note. Davies' U. S. Cir. Ct. 193. * Little v. Willetts, 55 Barb. 125. i» Sanderson v. Ooodrich, 46 Barb. 616. ' Einerson v. Spiaer, 55 Barb. 438, " Fogerty v. Jordan, 3 Rob. 319. 38 How. 114. " jVcIlvam v. Edgerton, 3 Rob. 423. « Offord V. Daxies, 13 C. B. N. S. 748, '^ Hartford, eta., v. New York, etc., 3 104 Eng. C. L. ; Burgess v. Eve, 2 Eng. Rob, 411. Bep. o79, L. R., 13 Eq. Cas. 450. " Pellecat v, Angell, 2 Cromp., Mees 676 DEFENSES. [CH. VA. nership in a manner prohibited by law, neither can recover against the other ; ' and, so, one who is required to have a license to sell, and sells without one, cannot recover for goods sold ; ' neither can a peddler, who is required to have a license, recover for his own services rendered in peddling while he had none.' It is not unlawful for members of a trades union to agree that they will not work below a certain price ; but any unlawful combination to compel a workman who works below certain wages or for a person who is not approved by the society to quit is." It is not necessarily illegal for the owner of the art of preparing a secret medicine to sell the secret, and agree that the vendee may sell the preparation with the vendor's name upon the labels.' Impossibility. — In order to discharge a party from liability, it must be impossible to perform ; it is not sufficient that it is difficult or expensive to do so ;° so it is no defense to a railroad in an action for not transporting goods, that a large number of its hands suddenly and wrongfully struck and refused to work,' nor that after the contract a statute was passed making perform- ance more burdensome ;' nor does accident or unforeseen occur- rence excuse perfoi'mance ;° when the party is prevented by the act of God he is excused.'" Infancy. — The contract of an infant is voidable and not void. If an infant assume and agree to pay a mortgage ; while still an infant sell it, and after majority, on being made a party to a fore- closure, does not interpose the defense ; held, when sued for the deficiency, she was not liable, as she had done no act of affirm- & Eosc. 311 ; Backman v. Jenks, 55 Daly, 1, stating the rules wliicli govern Barb. 468 ; Boxoers v. Bradley, 9 Abb. trades unions. N. S. 395. « Hard v. Sedny, 47 Barb. 438, see 1 ' Armstrong v. Lewis, 3 Cromp. & Bouv. Inst, 1, §774. Mees. 274. ^ Jervis v. Tomkinson, 1 Hurl. & '' Best V. Bauder, 39 How. 489. See Norm. 195. Williams's note to Bex v. Kelderhy, 1 ' Blackstock v. New York, etc., 30 N. Saund. 809 b (ed. 1846), 1 Williams's T. 49, 1 Bosw. 77. note to Saund. 515, ed. 1871. s Baker v. Johnson, 43 N. T. 136. ^ Btewartson v. Lothrnp, 12 Gray, 53 ; » Tompkins v. Dudley. 25 N. T. 375 ; but, see WoodAoard v. Stenrns, 10 Abb. Harmony v. Bingliam, 13 id. 99 ; Van N. S. 395, 41 Vt. 655 ; Cope v . Rowlands , B:iskirk v. Boberts, dl id. ('uT}-, Ghase 3 M. & W. 149, 159, and Ferguson v. v. Hatch, 4 Rob. 90 ; Jenkins v. Norman, 3 Scott, 794, are directly con- Wheeler, 8 Keyes, 656 ; GoVb v. Har- trary to Woodioard v. t>ti-iini,s, supra ; man, 23 N. T. 148 ; but see Hyland v. so, also, is Taylor v. Growland, etc., 10 Paul, 33 Barb. 241. Excbeq. 297. '» Harmony v. Bingham, 13 N.T. 99. * Master &emdores, etc., v, Walsh, 3 OH. TA.J DEFENSES. 677 anee;' otherwise, when, after majority, the infant retains the property he procured by the contract.' Insurance. — Where, on obtaining an insurance, the assured answered that " no steam engine employed on the premises ; the boiler being used for heating water and warming the shops ;" and it was further provided, that in case the risk was increased the poKcy should be void, it was held that a subsequent erection of a steam engine to connect with the boiler did not avoid the policy if the risk was not increased." A by-law, that a suit upon a policy shall be brought in a particular county is not binding on the assured;* so a clause in a policy, that suit shall only be brought in courts of the State incorporating the company ; " although, one that the action shall be brought within one year, or the insurer shall be no longer liable, is valid ;' slight evidence of waiver of such a clause will be sufficient.' If the clause be, that the amount to be paid shall be deteimined by directors, and if the assured be dissatisfied, he shall bring suit within four months, it does not bar a suit after four months to recover the amount fixed by the directors.' The time limited does not commence to run until the assured has a right to sue, notwithstanding the clause be that the suit shall be commenced within that time " after the loss accrue," for this clause is to be read in connection with the other conditions of the policy." Justification. — If an officer have two processes againt p7'op- erty, one of which is legal, and the other illegal, when sued for an act done, he may justify under that which is valid." If the officer, in fact, had the process in his hands at the time, he may justify, although he declared he entered for another purpose." ' Flynn v. Powers, 43 N. T. 26, re- ' Ripley v. Astor, 17 How. 444, 29 versing 54 Barb. 530, 36 How. 289, and Barb. 552, the reversal of this case in 35 id. 279, special term ; Irvine v. 30 N. Y. 136, does not seem to conflict Iriiine, 9 Wall. 618. with this proposition. ^ Henry v. Root, 33 N. T. 526; ' Amesiury v.Sowditch, etc.,Q (iia,y, Irvine V. Irvine, 9 Wall. 618. 596. ' Stokes V. Oox, 1 Hurl. & Norm. 533. ' Mayor, etc., v. Hamilton Mre Ins. ^ Nute T. Hamilton Ins. Co., 6 Gray, Co., 39 N. T. 45, 10 Bosw. 537. 174 ; Hall v. People's Mutual Ins. Co., '" Houghton v. Bachman, 47 Barb. 6 id. 185. 388 ; Hays v. Drake, 6 Gray, 387 ; ' Reichard v. Manhattan, etc., 1 Law Hooper v. Lane, 6 H. L. Cas. 443. See Reg. N. S. 547, 31 Mo. 518. Peck v. Tiffany, 2 N. Y. 451. « Ripley v. ^tna Ins. Co., 30 N. Y. " Crowthers v. Ramsbottom, 7 T. R 136; BoachY. New York, etc.,i&. 546; 654. Bemmes'v. Hartford, etc., 13 Wall. 158. 678 BEPEXSES. [CH. V A. In cases of process against the 'pernon, if an officer ari'est tlie party upon one wlucli is void alone he cannot afterward justify the arrest under a good one.' And if a party be arrested under a void process, the officer cannot detain him under a legal one." Where the officer would justify under two processes, he must plead both, as evidence is not admissible of a justification not pleaded.^ Libel. — It is no justification that the libelous matter was pre- viously published by a third person, that the defendant at the time of his publication disclosed the name of that person, and believed the statements contained in the libel to be true." But under the Code such matter could clearly be set up in mitigation.' It is a good defense to an action for libel that the defendant was a superior military officer, and the libel complained of was a report in regard to certain letters of the plaintiff to the com- mander-in-chief, even though the defendant was actuated by malice." It is not a good plea to say that the defamatory matter was and is true in substance and in fact. The court, on motion, will compel the party to make the answer definite and certain by pleading the facts and matters relied on.' Where the parties were jointly interested in certain real estate, and defendant wrote a letter about the property, complaining of defendant's conduct in relation thereto, and also relative to his conduct to his mother and his aunt, it was held that the latter portion was not privileged.' In an action for libel, it is a good plea that, after the commencement of a suit, the plaintiff and defendant agreed to accept the publication of mutual apologies in satisfaction of the causes of action, damages and costs, and that such apologies were published." Where a police officer neglects to report a gratuity received by him, the editor of a paper is not justified in stigmatizing it as a " blackmailing " operation.'" It is no defense that an article contains a correct narrative of what occurred if it contain unwarranted deductions from such facts ' Hooper v. Lans, 6 H. L. Cas. 443 ; ' Maretzeh v. Cauldwell, 5 Rob. 660. Peromal v. Stam.p, 9 Exclieq. 167. ' Dawkina v. Pawlet, L. K., 5 Q. B. 94. '' Ecjginton's Case, 3 Ell. & Bl. 717, ' Jones v. Bewioke, L. R., 5 C. P. 33 730, 75 Eng. C. L, ; Humphrey v. Maretzek v. Ganldwell, 5 Rob. 660. Mitchell, 3 Bing. (N.C.) 619, 39 Bug.'C. L. « Warren v. Warrem, 1 Cromp., Mees See Addison on Torta (8d. ed.), 638-9. & Rose. 850. ^ Oraham v. Harrower, 18 How. 144. ' Boosey v. Wood, 3 Hurl. & Colt. 484 ^ Tidman v. AinsUe, 10 Escheq. 63. i» Edsall v. Brooks, 3 Rob. 39. OH. V A.J DEFENSES. 679 defaming the plaintiff.' When a defendant seeks to mitigate damages by showing good faith, he must plead the facts and cir- cumstances which induced him to believe the truth of the charge, and they must be such as would authorize a person of ordinary intelligence and knowledge to believe the truth of the charge." It should also show that defendant knew such facts and circum- stances, and that he believed them to be true," and unless it do this the allegations will be stricken out." In pleading that de- fendant uttered the words in the heat of passion, defendant must plead the acts and circumstances which he claims caused his passion,' and so if he claim that plaintitPs former conduct was calculated to produce that effect." A letter written by an attorney to the next friend of his client, advising the next friend not to change his attorney, and giving as a reason plaintifPs unfaithful- ness to a former employer, is privileged.' License. — A parol license to enter upon lands of another and erect a dam is invalid, and may be revoked at any time ; ° nor will a license to one to insert the beams of his building in the wall of the licensor prevent his tearing down the wall.' The habitual use of a foot-path, without objection, warrants the find- ing of a license. ° A license to enter the house of another must be pleaded," and so a license to enter and demand a debt due the defendant from the plaintiff." Lien. — One who raises or destroys a sunken vessel has no lien upon the cargo, if it do not belong to the owner of the ves- sel, for the expenses of so doing." One who receives in pledge money collected by the pledgor for another cannot, against the owner, hold it, if he receive it under circumstances showing knowl- edge of, or a reasonable ground of suspicion as to the facts." Limitations, statute of. — The short statute of limitations, in favor of executors and administrators, only applies to claims ■ 1 Edsall V. Brooks, 2 Rob. 29 ; S. C, ■" Roberts v. WTiite, 2 Rob. 425. 3 id. 284. 8 Driscoll v. RosendaU, 37 N. Y. 637 ; * Dole-Bin v. Wilder, 7 Rob. 819. Martin v. Houghton, 1 Abb. N. S. 339, ^ Dolemn v. Wilder, 7 Rob. 319 ; 31 How. 82. Mousler v. Harding, 5 Am. Rep. 195 ; " Haight v. Badgeley, 15 Barb. 499. 33 Ind. 176. '» Vanbuskirk v. Irving, 7 Cow, 35. " Dolemn y. Wilder, 7 Rob. 319. " Vivian v. Mersey Docks, L. R., 5 C. ^ Wright v.Woodgate, 2 Oiom.p.,'M.ees. P. 19. & Rose. 573. 1' Haynes v. Foster, 2 Cromp. & ' Bdbcock V. TJtter, 1 Keyes, 115, id. Mees. Rep. 237. 397 ; Roberts v. Rose, 3 Hurl. & Colt. 162. 680 DEFENSES. [CH. VA. which are presented and rejected after the publication of notice requiring sncli presentation pursuant to an order of the surrogate, and the proper publication of a legal notice therefor ;' and they must, themselves, pass upon and reject the claim;'' but the executor may designate any place he pleases as his residence at which the presentation is to be made." An imqualified rejection is sufficient, although a desire for a bill of particulars be expressed,* but a continuance of negotiations is not.' In an action by an assignee, when a set-off against the assignor is pleaded, the assignee may avail himself of the statute of limitations and this without replying it.° The statute of limitations of another State is no defense, if the claim be not barred by the law of the forum.' The presumption of payment created by the Ke vised Statutes can be properly raised by a plea of payment. ° If the mortgagor make a payment upon the mortgage before it is barred by the statute, such payment prevents the running of the statute, even as against the owner of the equity of redemp- tion, who is not a party to the payment, and the mortgage will not be barred until twenty years from the last payment.^ Where a note is payable in installments, according to assessments by the directors of a corporation, the statute does not begin to run until an assessment and notice thereof ;" although if the note were, an original note made for and used as a part of the capital of an insurance company, it is payable on demand without assess- ment, and the statute runs from its date." Where the note of a third person is taken as security for a debt the statute does not commence to run on the debt until the note is due.'" Where an account is settled the statute runs from that time ;'^ although poverty is no excuse for delay if the statute have not actually attached the embarrassments of the plaintiff occasioned by the acts of the ' Hardy v. Ames, 47 Barb. 413; ^ New Torh, etc., v. Govert, 6 Abb. Murray v. Smith, 9 Bosw. 689. N. S. 154. ^ Hardy v. Ames, 47 Barb. 413 ; ' New York, etc., v. Covert, 6 Abb. Murray v. Smith, 9 Bosw. 689. N. S. 154, reversing 39 Barb. 435. 2 Hoyt V. Bonnett, 58 Barb. 529, dis- '° Hope Mutual Ins. Go. v. Taylor, 3 approving Murray v. Smith, 9 Bosw. Rob. 279 ; Howland v. GuyhendaXl, 40 689, upon tliis point. Barb. 320. * Hoyt V. Bonnett, 58 3arb. 539. " Howland v. Edmunds, 34 N. T. ' Gcdanan v. MeGlure, 47 Barb. 206. 307. « Thompson v. Sickles, 46 Barb. 49. " Fowler v. Clearwater, 35 Barb. 143. ■■ Toulandou v. Lachenmeyer, 37 How. '^ Ex parte Storer, Davies's U. S. Cir. 145, 6 Abb. N. S. 215 ; Power v. Hatha- Rep. 295. way, 43 Barb. 314. CH. V A.] DEFENSES. 681 defendant are a reply to the alleged laches.' In England where a principal had made an assignment and the surety wrote the creditor, " I hereby consent to your receiving the dividend under H's assignment, and do agree that your so doing shall not preju- dice your claims upon me for the same debt ;" the letter was held not to be a sufficient memorandum in writing to take the case out of the statute,' and that the letter, coupled with the payment, did not render it more than a " payment by a co-debtor ;" " which of itself is not sufficient to take a debt out of the statute, as against a debtor not paying or approving of a payment.' In this country, however, the letter would undoubtedly be held a sufficient direction to the creditor to apply to the principal debtor for payment to bind the surety.* So assent to and approval of a payment, after it is made, is sufficient to bind the party so approving." It is no answer to a plea of the statute that the plaintiff was prevented, by the fraud of the defendant, from knowing the cause of action until after the time of limitation had expired ; ° but where a count stated that the defendants bored into certain gas pipes of the plaintiifs and affixed gas pipes of the defendants thereto, and kept them so affixed for a long time without the knowledge of the plaintiffs, by means whereof large quantities of the plaintiffs' gas flowed out of their pipes ; that the defendants, maliciously contriving to prevent the plaintiff's from dis- covering the trespasses so committed till six years should have elapsed, fraudulently and without the plaintiffs' knowledge cut oft" from the plaintiffs' gas pipes the gas pipes of the defendants so affixed thereto, and, without the plaintiff's' knowledge, stopped and plugged up the gas pipes of the plaintiff's where the gas pipes of the defendants had been so affixed, by means whereof the plaintiff's were prevented from discovering the trespasses until six years from their commission had elapsed, and thereby the remedy of the plaintiffs by action became barred ; held, that the count dis- ' Mason v. Crosby, Davies's U. S. Cir. 18 N. Y. 558 : Munro v. Potter, 34 Rep. 303. Barb. 358. " Goakrill v. Bparkes, 1 Hurl & Colt. ' Huntington v. Ballou, 3 Lans. 120. 699. ° Imperial Oas Co. v. London Oas Co., ^ Shoemaker v. Benedict, 11 N. Y. 10 Excheq. 38 ; Troup v. Smith's Ex'r, 178 ; Barger v. Burvin, 33 Barb. 68 ; 30 Johns. 33 ; Argall v. Bryant, 1 Payne v. Slate, 39 id. 634; but see Sandf. 98, 101; Allen v. Mille, 17 Me'Clarg v. Howard, 45 Mo. 365. Wend. 303. * Winchell v. Howman, 21 Barb. 448 ; 86 682 DEFENSES. [CH. V A. closed a good cause of action.' The distinction seems to be that the count last named contained an equitahle reason why the statute should not apply, whereas the replication first named was set up as a legal defense to the statute. In England the court has since refused, as a matter of discretion, to allow such an equitable reply to a plea, in an action at law, to be interposed." But in equity, where a long time has elapsed, the statute will bar the action, unless the plaintiff' allege the facts were concealed from him, and set forth with particularity when and by what means the fraud was discovered, and support such averments by proof.' An agent who stands in a fiduciary relation to his principal, and holds the money of the principal in trust for him, cannot set up the statute of limitations in bar of a suit by his principal for an account.* While the debtor resides in an adjoining State the statute does not run, although he be daily in this State engaged in the trans- action of business ; '' at least until the aggregate of the time the debtor was within the State amounts to six full years." In an action against the stockholder of a plank-road company, for a debt of the corporation, the statute runs in favor of the stockholder from the time the debt becomes due against the corporation.' In an action by an attorney for his services the statute runs from the recovery of judgment, or at least when execution is issued;' even though the client have collected the judgment within six years ; " although the attorney may reach money in the hands of the sheriff' by proceedings to do so." The statute does not, however, commence to run as to any part of the claim, until the proceeding is fully terminated by judgment or settlement, although after a new trial be granted nothing be done for years." Where a party is made so by amendment he may avail himself of the statute, if it had run when he was brought in.'" An action ' Imperial Qas Co. v. London Oas Co., ' Conklin v. Furman, 8 Abb. N. S, 10 Excheq. 38, and see tlie cases cited 161. in tlie note to Johnson's Am. ed., p. 45. " Bruyn v. Gomstock, 56 Barb. 9 ^ Hunter v. Gibbons, 1 Hurl. & Norm. Adams v. Fort Plain Bank, 36 N. T 459. 255 ; Mygatt v. Wilcox, 45 id. 309. 2 Badger v. Badger, 3 Cliflford, 137. ' Bruyn v. Gomstock, 56 Barb. 9. ' Burdick v. Qarrick, L. R., 5 Ch. '" Ante, chap. 4a, title, Limitations. App. 333, distinguishing In re Hind- " Mygatt v. Wilcox, 45 N. Y. 306. marsh, 1 Drewry & Smale, 139. " Plowden v. Thorp, West. H. L. ' Bassett v. Bassett, 55 Barb. 505. Cas. 43. 'Bennett v. Oook, 43 N. Y. 537; Campbell v. White, 33 Mich. 178. CH. V A.J DEFENSES. 683 against trustees of a maniifacturing company to recover a debt against the company, on the ground that the trustees did not make an annual report as to the condition of the company as required by statute, subjects the defendants to a penalty or for- feiture, and is barred in three years.' Where payment of part of a moiety, due to one joint creditor, is made with the intention of extinguishing his half of the debt, the payment takes the remainder of the debt out of the statute in favor of the other creditor." It was held under the Revised Statutes, that the statute in favor of sheriffs did not extend to acts done colore officii ; ' the rule is otherwise under the Code.* Married women. — In an action upon a promissory note by an indorsee, an answer that, at and before the making of the note, the defendant was and still is a married woman prima facie con- tains a good defense ; ' a married woman cannot give her own accommodation note for others so as to bind herself or estate." Master and servant. — In an action against a master for not teaching an apprentice, it is a good defense that the apprentice would not be taught, and by his own willful acts prevented the master from teaching him.'' Mistake. — In an action to recover the proceeds of a sale of property consigned to defendant by plaintifi', it is no defense that the property was shipped in plaintiff 's name by mistake ; that it should have been shipped in the name of another who had made advances to plaintiff for a portion of it ; and that, by arrangement between plaintiff and such third person, it was to be shipped in the name of such third person and sold on his account.' In order to entitle a party to set up a mistake, or ignorance of the contents of a paper, the circumstances should be such as to induce a person of ordinary intelligence to infer that it was of the nature supposed ; there must be a reasonable and plausible ground, too, for the alleged belief." "Where certain articles of personal prop- ' Merchants' Bank v. Blias, 1 Eob. ' Raymond v. Minton, L. R., 1 391. Excheq.244. * Garrington v. Crocker, 4 Abb. N. " Aubrey v. Fislce, 36 How. 379, 36 S. 335. N. Y. 47. 5 Morris v. Van Voast, 19 Wend. ' Schmidt v. Hurforth, 5 Rob. 134 ; 283. Harris v. Story, 2 B. D. Smitb, 867 ; ■* Gumming v. Brovm, 43 N. Y. 514. Jackson v. Gory, 13 Jolins. 429 ; Glem v. " Seudder v. Gori, 3 Rob. 661. Newcastle, etc., 9 Ind. 488 ; Breese v. « Seudder v. Qori, S Rob. 661. U. 8. Tel, 31 How. 86 ; Ghase v. Hamil 684 DEFENSES. [CH. VA. erty were accidentally omitted from a bill of sale, hold, that such omission might he pleaded as an equitable defense, and the plain- tiff could not unjustly avail himself of what was a mere mistake in the wording of the instrument ; ' and it has been held allow- able to show that a part of a parish, named in an agreement, was not intended to be included, but had always been treated as part of another parish ; ° so that in a contract of sale the brokers acci- dentally omitted a clause that the goods should conform to a sample." Mitigation. — In assault and battery and for false imprison- ment, facts justifying a portion only of the violence and of the im- prisonment, for a portion of the term complained of, may be interposed in mitigation ; ' and it seems to have been held that any matter in mitigation may be pleaded.* Modiflcation of contract. — A course of dealing for six years may modify an express contract, and is binding as a new or modi- fied contract ; ° an unexecuted contract un der seal, upon which no cause of action has arisen, cannot be discharged or modified by a new parol agreement, although fully executed,' unless such new contract be accepted in lieu of the old one.° Negligence. — In an action for assault and battery, the defend- ant pleaded, that defendant was riding in a careful manner along a public highway, and while so riding the plaintiff negligently, carelessly, and improj)erly walked along and across the middle of the highway, and thereby came in contact with the said horse, and was thereby knocked and thrown down, and bruised and injured, as in the declaration mentioned, without any default on the part of the defendant ; and that the said hurt was occasioned by the negligent, careless, and improper conduct of the plaintiff, and not by the default of the defendant ; and that if the plaintiff had exercised due care the same would not have happened ; held, ton, etc.,20 N". Y. 55; ffuntery. Wal- > Steele v. Haddock, 10 Excheq. 643. ters, L. R., 11 Eq. 292, L. R., 13 Eq. 79, ' Luce v. Izod, 1 Hurl, & Norm. 245. and cases cited ; Collins v, Cocjgill, 7 " Borrowman v. Rossel, 16 C, B. N. S. Rob. 91 ; Ogilvie v. Knox, etc., 22 How. 58, 111 Ens^-. C. L. (U. S.) 380 ; Tiirkerman v. Brown, 33 * Foliii,d\. Johnson, 16 Abb. 235. N. Y. 297, 1 Redf. on Railways, 155, 158 ^ Folarid v. Johnson, 16 Abb. 339. 159 ; Oakes v. Turquaiid, L. R., 2 H. L. « Hartford, etc. v. iV". T., etc., 3 Rob. 325 ; Directors v. Kisch, L. R., 2 H. L. 412. 99; Western Bank v. Addie, L. R., 1 ' Knhn v. Stevens, 7 Rob. 544; Scotcli & Div. App. 145 ; Waterman v. Olough v. Murray, 3 id. 7. Jameson, L. R., 3 id. 39. * Olougli v. Murray, 3 Rob. 7. OH. VA.J DEFENSES. 685 bad on special demurrer, as amounting to the general issue, and also, that it was bad as purporting to be in confession and avoid- ance, and yet, did not auuiit the trespass or state any circum- stances to justify it.' Notice. — Where a broker justifies the selling of stock on account of the owner not having kept up his margin, he must, unless the contract provide for his selling without notice, allege notice to the owner and an opportunity by him to make the; margin good ; " and an usage among brokers to sell without notice is no defense;' but after notice the broker may sell,* and the parties may agree to treat as void a sale made without notice, when the broker may again give the notice, and, unless (he pur- chaser furnish the additional margin, he may sell after waiting a reasonable time.'' No notice of the time and place of the sale, it seems, is necessary," and the broker may sell without notice when the contract provides he may do so.' A contract for the purchase and sale of shares of stock at a, specified price, "payable and deliverable at seller''s option this year, with interest at six j)er cent per annum," is a sale in presenti., the vendor becoming a quasi trustee for the purchaser and the latter becoming entitled to all dividends.' And when the vendor gives notice of his election to deliver, the rights of the parties become the same as if that time were named in the contract. If new stock be thereafter issued the vendor is not bound to advance his own money to preserve the new shares which attach to those sold. Unless the vendee furnish the means, he cannot claim the vendor is in default for not preserving the new shares.' The vendee may, if he make distinct and separate demands, recover the old shares, with the dividends, although not entitled to the new.' A defense that a third person had given the defendant notice that the amount claimed belonged to him, by virtue of an assignment, is not good without an allegation that plaintiflf had 1 Ball V. Matthews, 10 Irish Law. ' Stewart y. Drake, 46 N. T. 449. Eep. 316. See Hanks v. Brake, 49 Barb. 186. ' Bitter v. GusTiman, 35 How. 284 ; * Sterling v. Jaudon, 48 Barb. 4.59 ; Markham v. Jaudon, 41 N. Y. 235 ; but see Stewart v. Drake, 46 N. Y. Hanks v. Drake, 49 Barb. 186. 449. ^ Markham v. Jaudon, 41 N. Y. 235; ■" Milliken v. Behon, 27 N. Y. 364; 9 Am. Law Reg. N. S. 285, reversing Markham v. Jaudon, 41 id. 343. i9 Barb. 462. » Gurrie v. White, 45 N. Y. 823. < Stewart v. Brake, 46 N". Y. 449. 686 DEFENSES. [CH. VA. in fact assigned the claim.' But a defense that supplementary proceedings had been commenced against plaintiff, in which plain- tiff and defendant had been forbidden to transfer, dispose of or interfere with plaintiff 's property, is good, although the proceedings were instituted after suit brought.' One who purchases and pays for a machine under an agreement that if, after a fair trial by the buyer, it does not prove to be suited for the vendor's purposes and entirely satisfactory in all respects to him, he may return it, when the seller will refund the price ; he may, after a fair trial, if it do not answer his purposes or prove satisfactory, return it without notice to the seller, or an opportunity to repair or change it, although after return it worked well, under the seller's management.'' Nuisance.' — No length of time will give a right to maintain a public nuisance ; the channel of a river, subject to periodical floods, should be carefully guarded against encroachments.'' One who has erected a nuisance is not liable for its continuance after he parts with the property on which it was erected, unless he derive some benefit from the continuance, or have sold vsdth a warranty of the continued use of the property as enjoyed while the nuisance existed.' One who defends an action of trespass, on the ground that he entered to abate a nuisance, must allege that he did so with the least possible injury to the owner of the land entered, and in a necessary and reasonable manner ; ' but in deter- mining this, the circumstances and kind of property should be taken into consideration.' No citizen has a right to abate a nui- sance simply because it is an encroachment upon the public rights ; it must annoy the public ;° if he sustain a special injury thereby he may abate it.° Where there are two methods of doing work in a public highway from which damage may result to a passer- by, the one more dangerous than the other — though both are usual — it is for the jury to say whether the adoption of the former mode amounts, under all the circumstances, to negligence." > Carpenter v. Bell, 1 Rob. 711. ' Northrop v. Burrows, 10 Abb. 365. '^ Aiken v. Hyde, 99 Masa. 183. » Ooldsmith v. Jones, 43 How. 415 ; ' As to what is a nuisance see Moak's Oriffith v. McCuUum, 46 Barb. 562 ; note to Clarke's Ch. 359 (new ed). Barrower v. Ritson, 37 id. 301. " City of Rochester v. Eriekson, 46 ' Ooldsmith v. Jones, 43 How. 415 ; Barb. 93. Harrower v. Ritson, 37 Barb. 301. ^ Ranse v. Cowing, 1 Lans. 288. '" Cleveland v. Spier, 16 C. B. N. S. ' Roberts v. Rosel'i Hurl. & Colt. 163 ; 399, 111 Eng, C. L. Rep. Ely V. Supervisors, 36 N. Y. 300. CH. VA.] DEFENSES. 687 Officer. — Where an officer, in doing a legal act,- is called upon to exercise liis discretion as to the best method of doing an act, he acts judicially ; his judgment is conclusive upon the question, and he is not liable, civilly, to any one for the manner in which he exercises his discretion.' But if he can accomplish the desired end without destroying private property, he is required to do so except in cases of overruling necessity." Officers of corporations. — In an action against trustees of a manufacturing company to recover the amount of a debt against the corporation, on the ground that the defendants did not make an annual report of the condition of the company, laches for a less time than bars the cause of action, under the statute of limita- tions, is no defense." Ownership. — Allegations in an answer, that plaintiff is not the owner of the note sued upon, without denying the facts alleged in the complaint showing that he is are frivolous.* A denial of all matters inconsistent with the answer is merely a re-affirmance or repetition of the matters already pleaded.^ Parent and child. — In an action brought by a father to recover money received from his infant child, it is a good defense that the infant having contracted a debt to the defendant, gave him an order on a third person on account of wages earned by him, upon which defendant received the money in good faith.' Payment. — The acceptance by a creditor, from his debtor, of a bill or note made by the debtor or by a third person, on account of a precedent debt, does not satisfy it, unless the parties agreed that it should be received as payment ;' and the onus of showing siich agreement is upon the debtor ; ' and he may contradict ' UnderiDoodv. Or een, 3 B.oh.8Q,dZ; ^ Mercliants' Bank v. Bliss, 1 Rob. Gh-iffith V. FoUett, 20 Barb. 620 ; Mills 391. V, Brooklyn, 32 N. Y. 489 ; Board of * Plant v. Schuyler, 7 Rob. 271, 4 Commissioners v. Vanderhilt, 2 Rob. Abb. N. S. 146. .■'. / 383 ; Wilson v. Mayor, 1 Den. 599 ; '• Plant v. Schuyler, 7 Mb! 371, 4 Kendall v. Stokes, 3 How. (U. S.) 87 ; Abb. N". S. 146. People V. Collins, 19 Wend. 56 ; Matter ' Herrick v. Fritcher, 47 Barb. 589. of Church street, 49 Barb. 455. ' Nod v. Murray, 13 N. Y. 167 ; '^ Cleveland v. Spier, IQ C. B. N. S. Sinithv.Applegate,l'Da.ly,91;BusweU 399, 111 Bng. C. L. Rep. ; Hicks v. Born, v. Pioneer, 4 Abb. N. S." 344 ; Darnell 54 Barb. 172, affirmed, 9 Abb. N. S. t. Morehouse, 36 How. 511 ; Paine v. 47, and cases cited in note, 42 N. Y. Voorhees, 26 Wis. 533 ; Lear v. Fried- 47 ; see cases of the same character lander, 45 Miss. 559. provided for by statute laws of N. Y. * Noel v. Murray, 13 N. Y. 167 ; 1870, vol. 1, p. 520. Freeland v. Van Campen, 36 How. 39 688 DBFENSES. [CH. VA. the language of a receipt.' The acceptance, however, suspends the remedy of the creditor upon the original indebtedness, until the note or bill becomes due.'' If the note or bill was received at the time of the creation of the debt, the presumption is, that it was agreed to be taken in payment, and the onus of showing that it was not is upon the creditor ;' unless the sale was for cash, and a check is received as a means of drawing the money ; * although a check may, by agreement, be taken in pay- ment.' That a note of a third person, received at the time of the contraction of a debt, was not received in payment, may be shown by circumstances or the subsequent conduct of the parties.' Where the seller requested the buyer to get him a draft on New York for the amount of the purchase, and the latter procured one from a banker in good standing, which the seller accepted, it was held a payment.' The giving of a new note by one of two joint and sev- eral makers of a former note, but without an agreement that such new note shall be received as payment, and without its being in fact paid, constitutes no defense to the original note.' Where one holding an executory contract for the conveyance to him of certain premises, subject to a mortgage, renders services for the mortgagee upon an agreement that the value thereof shall be applied as a payment upon the mortgage, he is entitled to the benefit of such payment as against a subsequent assignee of the mortgage." If a note be payable at a bank, the deposit therein of an amount sufiicient to pay it is not sufficient to extinguish it. If pleaded as a tender, it simply bars the recovery of subsequent interest, and if brought into court entitles the maker to subse- quent costs. The holder is entitled, in any event, to a verdict for the amount of the note and interest to the day of tender.'" A vendor who has given credit to to agent, believing him to be the principal, cannot recover against the undisclosed principal, if the principal has hona fide paid the agent at a time when the vendor ' Buiiwell r. Pioneer, 4 Abb. N. S, 944 ; Sear v. Friedlanaer , 45 Miss. 559, ' Smith V. Applegate, 1 Daly, 91 , but see Paine v. VoorJiics, 'Hi Wis. 533, JSfoel V. Murray, 13 N". Y. 167 " Turner v. Bank, 3 Keyes, 485. 6 Youngs v. Stahlen, 34 N. T. 358. 1 Oibson V. Tobey, 46 N. T. 637 ; Moore v. Quint, 44 Vt. 97. » Bates V. Rosekrans, 37 N". Y. 409 ; Youngs v. Stahlen, U id. 358 ; Gibson 4 Abb. N. S. 376. V Tohey, 46 id. 637. ' Hartley v. Ilatham, 1 Rob. 346. " Darnell v. Thomas, 36 How. 511 ; '» Sill v. Place, 7 Rob. 389. Turner v. Bank, 3 Keyes, 435. OH. VA.] DEFENSES. 689 still gave credit to the agent and knew of no one else as principal.' The plaintiff, at the request of M, her solicitor, lent to the de- fendant £200 on the security of his bond; M was also the solicitor of the defendant, and was accustomed to receive his rents and make payments on his account ; the plaintiff applied to M for payment of the bond ; M, who was then indebted to the defendant, borrowed the amount from a bank with whom he deposited the bond as a security, and with the money so borrowed paid the bond. The defendant had no knowledge of this trans- action. M afterward died insolvent, and the bank sued the defendant on the bond in the name of the plaintiff. Held, there was no payment of the bond by the defendant.^ P, a solicitor employed both by a mortgagor and the mortgagee, received the in- terest of the mortgage debt regularly ; after a time he fraudulently obtained from the mortgagor a portion of the principal ; at first the mortgagee received his interest regularly from P at his office, but, ultimately, P allowed the interest to fall into arrear till a large sum became due to the mortgagee ; during this time the mortgagee made no application to the mortgagor, in consequence of the irregularity in payment. In September, 1853, the mort- gagor paid the mortgagee £4:3 13s. 9d. as a half-year's interest on the principal remaining due ; that led to an explanation and the discovery of the fraudulent receipt of the principal by P. The mortgagee did not repudiate the payment at the time. On the 24th of February, the mortgagor wrote to inquire in what way he should pay the half-year's interest just due, expressing his fear that P would not be able to make good his defalcations to the mortgagee. On the 26th, the mortgagee wrote requesting pay- ment by check ; and on the 4th of March the mortgagee again wrote, saying that he believed that P was hopelessly involved, and suggesting that the loss should be divided between them. Held, that P was the agent of the mortgagee, to receive the interest but not the principal ; and that, in order to bind the mortgagee by the acts of P, in receiving the principal, it was necessary to show either that what he did was with the intention of adopting the acts of P, or that the position of the mortgagor was ' Armstrong v. Stokes, 3 Bng. Eep. " Lucas v. Wilkinson, 1 Hurl. & 217, L. R., 7 Q. B. 598, and see note at Norm. 420. end of case. 8T 690 DEFENSES. [CH. TA. altered.' One offered to a bank, in payment of a note nearly due, a check drawn upon a bank by one of its own customers ; the bank declined to accept it as payment, but consented to retain and apply it to the note if the check was made good on the day the note fell due. On that day, a balance appeared against the drawer of the check, but soon after, new credits having been made to him, the bank charged the check to his account and credited the note as paid. This transaction was held to operate as an absolute payment of the note.' Such entries upon the books of the bank were of precisely the same effect as if the money was first paid to the payee of the check, and instantly repaid to the bank.' It has been held that if payment be made after a writ be sued out, the defendant must allege payment of the costs as well as dam- ages ;* but such is not the law in this country unless the process has been actually served ;° and even after service such a payment is good unless the plaintiff refuse to receive it unless the costs are paid.' A payment after suit commenced to plaintiff's clerk, with- out payment of the costs, is not good.' If a new note, accepted in payment, prove to be a forgery, it is not a payment of the original note, or an extinguishment of the right of action upon it.' Performance. — Under an agreement for the sale of the art and mystery of manufacturing and compounding a secret prepar- ation, and the exclusive right to make, use and vend the same, with a covenant on the part of the vendor not to impart the secret and not to make or vend the article, in consideration of which the vendee agreed to pay a certain sum in installments, it was held that the covenants were independent, and the vendor, in suing for the consideration, need not aver performance.' It is a good defense to an action by a contractor, to recover for work done, that, under a clause in the contract, the partj^ for whom the work was done notified him to increase the number of laborers, and, in ' Kent V. Thomas, 1 Hurl. & Norm. * Prancis v. Grywell, 5 Barn. & Aid. 473. 886. 2 Pratt V. Foote, 9 N. Y. 463, 10 id. i* Brown v. Fergmon, 2 Den. 196 ; 599 ; see Commercial Bank v. Union Knight v. Beach, 7 Abb. N. S. 341. Bank, 11 id. 203. « Bendit v. Annesley, 27 How. 184; s Pratt V. Foote, 9 N. Y. 463, 10 id. Caine v. Coulion, 1 Hiirl. & Colt. 764. 599 ; V. Du Rhone, MacNagliten's ' Bogardus v. Richtmyer, 3 Abb. 179. Select Cas. 313 (Pliila. ed.) ; Beach v. » Goodrich v. Tracy, 43 Vt. 314. SmitJi, 30 N. Y. 131 ; Pattison v. Guar- " Hard v. Sedey, 47 Barb. 428. dians, 1 Hurl, & Norm, 533. OH. VA.J DEFENSES. 691 default of his so doing, declared the contract forfeited.' Where a complaint seeks to recover for work and labor, the defendant may defeat the action by setting up as a defense and proving that the work was done under a contract which plaintiff failed to perform.' The party must perform the entire contract,'' but, under a contract to manufacture three or four models of a mowing machine, the workman may elect which he will manufacture.'' Pledge. — ■ The mere deposit of notes as collateral security, with- out transfer of the title, only vests in the creditor or pledgee a con- tingent equitable interest in the notes, or the proceeds thereof, if the debt be not paid. This equitable interest is subject to any prior equity in favor of the maker against the pledgor, and the maker may, in a suit on such notes, avail himself of any equitable defense existing at the time of the pledge.' Promissory notes. — To a declaration upon a joint and sev- eral promissory note given to plaintiff' by the defendant and one E, payable on demand, the defendant pleaded, as an equitable defense, that he made the note jointly with E, for the accommo- dation of E, and as his surety, only to secure a loan made by plaintiff to E, and that before and at the time when the note was made, the plaintiff, having notice of the premises, agreed with the defendant, in consideration of his making the note as such surety as aforesaid, that the plaintiff woxild call in and demand payment of the note from E, within three years from the date thereof; that the plaintiff, at the time of making the note, with intent to carry out the agreement, and with the assent of the defendant and E, wrote on the back of the note as follows : " Memorandum : This note is to be paid off within three years from date ;" that the memorandum was signed by E, but that by mistake of all the parties it was omitted to be mentioned in the memorandum that the plaintiff was to call in and demand pay- ment of the note from E, within three years; and that the plaintiff neglected to call in or demand payment of the note within the period aforesaid, whereby ho lost the means of obtain- ing payment from E, who had since become and was insolvent : Held, that this plea disclosed a good equitable defense, on the ' PJielan v. A. & 8. B. JR., 1 Lans. ' Sharpe v. Johnson, 41 How. 400. 258. See Aspinwall v. London, etc., 11 ^ Snow v. Fourth Nat. Bank, 7 Rob. Hare, 325. 480. 693 DEFENSES. [CH. VA. ground that the condition, in consideration of which defendant had become surety, had not been performed by the plaintiff.' But where, in an action on a Ijill payable twelve months after date, defendant pleaded that he drew the bill and delivered it to the plaintiff for the accommodation of the acceptor, and as surety for him; that, at the time the defendant so drew and delivered the bill to the plaintiff, it was agreed between the plaintiff and the defendant and the acceptor, that the acceptor should deposit with the plaintiff certain securities, to be held by the plaintiff as security for the due payment of the bill, and that, in case the bill should not be duly paid, the plaintiff should sell the security and apply the proceeds in liquidation of the bill, and that, until the plaintiff should have so sold the securities, the defendant should not be liable to be sued on the bill ; that the said securities were so deposited with the plaintiff' by the acceptor, but that the plaintiff had not sold but still held them ; held, that oral evidence of the agreement alleged in the plea was not admissible, as it contradicted or varied the express written con- tract on the face of the bill ; " so a parol agreement, at the time of the giving of a promissory note, to renew it at maturity, is invalid.' Where the holder of a note over-due for a valid consideration agrees not to sue the maker for a definite time, and, in violation of such agreement, commences a suit before the expiration of the time agreed upon, the remedy of the maker is to set up such agreement by way of defense to the action ; he cannot sustain an action on his part for a violation of the agreement.* A note payable in installments is dishonored as to the whole amount of the note after default in the payment of one installment ; one who afterward purchases it takes it subject to all the equities between the original parties ; ° so of a note paj^able " to the bearer A," for it is not negotiable.' There is some conflict in the authorities on the question whether a note transferred on the last day of grace is dishonored. In Massachusetts it is held to be ; ' while in JSTew ' Lawrence v. Walmsly, 12 C. B. " Pearl v. Wells, 6 Wend. 291 N. S. 799, 104, Bug. C. L. Rep.; gee Sal- » Vinton v. King, 4 Allen, 563. mon V. WeN), 3 House Lords Cases, 510. ' W((rren v. Scott, 33 Iowa, 22. ■ Abrey v. Crux, L. R., 5 C. P. 37. ' Pine v. Smith, 11 Gray, 38 ; Dmv^ ^ Bailey v. Lane, 31 How. 475, non v. President, etc., 5 Gush. 194, 1 affirmed, 13 Abb. 354 ; Mlizabethport, Pars, on Cont. 317. etc., V. Campbell, id. 87 ; Kellogg v. Olmsted, 38 Barb. 96, 35 N. Y. 189. CH. V A.J DEFENSES. 698 Tork it has seemingly held not to be ; ' in Ohio it has been held that a note payable " when convenient " to the maker is payable within a reasonable time,° while in Massachusetts the reverse has been held.° An agreement to pay in " satisfactory notes," means snch notes as ought to satisfy a reasonable man.'' Reformation of contracts. — A contract cannot be reformed in a collateral action by persons not parties thereto, nor claiming under a party in privity thereto.'' Rent. — Where to a declaration by the devisee of the reversioner for rent on a lease covenanting to pay the lessor, his heirs and assigns, alleging that the reversion of and in the demised prem- ises belonged to the lessor and his heirs, it was held that a plea, that the reversion of and in the demised premises did not belong to the lessor and his heirs, was good, notwithstanding it was alleged, by way of replication, that the lessee entered and enjoyed the demised premises by virtue of the lease." Where a tenancy from year to year is determined by a regular notice to quit, the mere accidental detention of the key by the tenant (who had quit the premises and removed his goods) for two days beyond the expiration of the term, does not amount to any evidence of use and occupation so as to render him liable for another quarter.' An agreement by landlord and tenant that the term shall be put an end to, acted upon by the tenant's quitting the premises, and the landlord, by some unequivocal act, taking possession, amounts to a surrender by operation of law. Where, therefore, the tenant left the key at the counting-house of the landlord, and the latter, though he at first refused to accept it, afterward put up a board to let the premises, used the key to show them, and painted out the tenant's name from the front ; held, sufficient evidence of a surrender by operation of law.' 1 OotJiout V. Ballard, 41 Barb. 33 ; = Q^dy v. Potter, 55 Barb. 463 ; Cra- Edwards on Promissory ISTotes (1st ed.), mer v. Benton, 60 id. 217. 535. * Weld v. Baxter, 1 Hurl. & Norm. 2 14 Obio St. Hep. 88, Edw. Prom. 568. Notes (1st ed.), 154, note. ' Gray v. Bompas, 11 C. B. N. S. 520. 3 Barnard v. Gushing, 4 Mete. 230, 103 Bng. C. L. 233. * Pheno v. PoppUwell, 13 C. B. N. S. * 14 Ohio St. Rep. 90 ; Guier v. Page, 334, 104 Eng. C. L. See the note to 4 Serg & Rawle, 1 ; Moore v. Wolsey, Johnson's Am. ed., see also Revised 4 Ell. & Bl. 243, 250, 256; Fagen v. Statutes of N. Y., vol. 2, p. 184, § 6, 3 Davidson, 2 Duer, 103 ; See Stevens v. Bdm. St. 139 ; Smith v. Devlin, 23 N. Low, 3 Hill, 182. Y. 868 ; Bowan v. Lytle, 11 Wend. 616. 694 DEFENSES. [CH. VA. Replevin. — It has been held that when the property taken by virtue of a writ of replevin is a living animal, and there is judgment of retorno habendo, in an action on the replevin hond for a breach of the condition, it is a good plea in bar that before the judgment in the replevin suit, the animal died, without the default of the plaintiff in such suit ;' provided the suit was brought in good faith ;" so in replevin for a slave, he having been emancipated.' Rescission. — - A provision that, if one party shall fail to ful- fill his covenants, the contract shall be null and void, gives the other party an option to rescind or affirm the contract. The party in default cannot repudiate the contract on the ground of his own wrong.* One who has contracted with A, for a machine, may, by his acts, rescind that contract and make a new one with A's assignee.' A new contract, changing the mode of payment for goods bought, and which is substituted for the original eon- tract of sale, after the execution of the latter, by the seller, and canceled by the parties, deprives the seller of the right of rescind- ing the sale and reclaiming the goods by reason of a fraudulent intent, on the part of the buyer, not to pay therefor, existing at the time of the original purchase. ° On a sale of a machine, "if it prove suited for the purpose and entirely satisfactory in all respects to the purchaser," and if not the seller to return the pur- chase-price; after trial of the machine, if not satisfactory, the buyer may return it without notice to the seller, or opportunity to repair it.' Set-off.° — It has been held that, in an action for rent, the lessee cannot set ofi' his damages by reason of a breach in a cove- nant in the lease that the sub-cellar shall be free from percolation of water through the walls or floors thereof;" that the damages ' Carpenter v. Stevens, 12 Wend. 589. ' Aiken v. Hyde, 99 Mass. 183 ; see See Dexter v. Norton, 47 N. T. 65 ; to McDonald v. Pierson, 38 Barb. 128 ; tliQ contrary in effect, Suydam v. Jenk- Grounsell v. Lamb, 1 Mees. & Welsh. ins, 3 Sandf. 644. 352 ; Hartford, etc., v. Brush, 43 Vt. 2 Walker v. Osgood, 53 Maine, 422. 528 ; Bootlihij \. Scales, 27 Wis. 626. ' Young v. Pickens, 45 Miss. 554. * See Barbour on Set-off; Waterman * Hard v. Seeley, 47 Barb. 428, 434. on Set-off, Kecoupment and Counter- ^ Sloan V. Van Wyck, 47 Barb. 631. claim. 8 Sparks v. Leamy, 1 Rob. 530 ; 38 » Benkard v. Bahcoch, 3 Rob. 176 ; JSf . Y. 103 ; Adams v. Sage, id. 103 ; but see Myers v. Burns, 33 Barb. 401 , Mason v. Ditclibourne, 1 Mood. & Rob. 35 N. Y. 369. 460. CH. VA.J DEFENSES. 695 must be shown from the facts; that the jury were the proper jr. 3ges of the extent thereof; and that the damages recoverable were the expense.:- of repairing past and preventing future in- juries ; ' otherwise, where the landlord undertook to make the repairs, and did the same so negligently that the tenant's property was injured thereby ;° nor can the tenant recover damages for the interruption to his business, while the repairs are being made.' In case of mutual debts, in the absence of an appropriation thereof as payment, neither party can be compelled to avail himself of his claim as a set-off;* even though it be a claim for not properly performing work, for the doing of which a recovery has been had.' In an action by an administrator, who sues in his representative character for a debt which accrued after the death of the intestate, the defendant cannot set off a debt due to him from the intestate in his life-time." It has been held in England that, in a suit to recover as a lighterman for unloading coal, that a defense that a portion of the coal was lost by plaintiff's negligence was not an equi- table defense pro tanto.'' The rule is clearly otherwise in this country.' ; Slander. — If the ;occasion of the speaking of alleged slander- ous words render them privileged, the facts should be pleaded by way of defense. In an action for slander in giving a character to a servant, it is j)rima facie privileged ; ' otherwise, if there be actual or express malice, or sinister or corrupt motives. If there be any evidence of such malice or motives, the court is bound to submit the case to the jury." A communication, which would otherwise be actionable, is privileged if made in good faith, upon ' Benkard v. Babcock, 2 Rob. 176 ; " Bees v. Watts, 11 Excheq. 410 (in Borwiii V. Potter, 5.Denio, 306 exchequer chamber, affirming court of ' Walker v. Swayzee, 3 Abb. 138. exchequer, 9 Bxcheq. 696) ; Merritt y. 3 Ward V. Kelsey, 43 Barb, 583, 38 Seaman, 6 Barb. 330, 6 N. Y. 168 ; Sills N. Y. 80 ; but see Myers v. Burns, 33 v. Tollman's Adm'r, 21 Wend. 674 ; Barb. 401, 85 N. Y. 369. Wat. on Set-oflf (1st ed.), 197, 300, note. * Peck V. Minot, 4 Rob. 328 ; Salsey ' Stimson v. Sail, 1 Hurl. & Norm. V. Oa/rter, 1 Duer, 669 ; Soj'th v. Burt, 881. 43 Barb. 633 ; Welch v. Saeleton, 14 ' Cases cited in Mr. Hare's note to How. 97 ; Green v. Law, 2 Smith (Eng.) Stimson v. Sail, 1 Hurl. & Norm. 836, Rep. 668; in the latter case, however, Johnson's edition jSaWerwiara v. Pierce, the attorneys were severely censured 3 Hill, 171 ; Tibbetts v. Ayer, Lalor's for not determining the entire matter Sup. 174. in one suit. ' Jackson v. Sopperton, 16 C. B. N. » Dams V. Sedges, L. R., 6 Q. B. 687. S. 839, 111 Eng. G. L.; Fowles v. Bowen. 696 .DEFENSES. [CH. V A. a matter involving an interest or duty of the party making it, though such duty be not strictly legal but of imperfect obligation, to a person having a corresponding interest or duty ; ' as the report of a committee to a college of pharmacy in regard to the impor- tation of spurious and adulterated drugs ; ' or a report or charge to a society of which plaintiff was a member.^ The proprietors of a mercantile agency are not liable for what they say in good faith, as to the credit of a merchant, to a subscriber who expressly asks for an answer ; " otherwise for a general publication as to his solvency even to subscribers only.' So, as to the report of a phy- sician, that one is insane unless made in the discharge of a duty, and to a person having a corresponding duty in reference to the subject-matter.' What one says when inquired of by a friend of the plaintiff, as to a charge he had made, is not privileged ; ° an attorney's clerk who states to one, not expected to be a witness, that a witness is to be indicted for perjury, is liable.' What a juror says in the jury room, in discussing the case under consid- eration, is privileged. ' What a witness says, if he believes his answers to be pertinent and relevant to the question at issue, is privileged; otherwise, if actuated by malice, or knowing that what he says is not relevant, he avails himself of the opportunity to defame the plaintifi'." When words imputing misconduct, of which two persons are alleged to have been jointly guilty, are spoken to one of them under circumstances which make the com- munication privileged as to him, the slanderer's statement is priv- ileged as to the other.'" As where a party mentioned to the rector of her parish a rumor which she had heard, impugning his conduct and the conduct of the plaintiff, his solicitor, in the man- agement of a certain trust, the jury having found that the words were spoken hona fide and without malice, under the belief that it was important for the rector to know the rumor in order that he might clear his character.'" 30 N. Y. 20 ; Thorn v. Moaer, 1 Denio, = Perkins v. Mitehell, 31 Barb. 461, 488. 466, 468. ■ Van Wyclc V. Aspinwall, 17 N. Y. ' Thorn v. Moser, 1 Denio, 488 ; 190. Griffith v. Lewis, 3 N. Y. Leg. Obs. 330. ' Streety v. Wood, 15 Barb. 105. ' Brown v. Oooper, 2 N. Y. Leg. Obs. ' Ormshy v. Douglass, 37 N. Y. 477. 355. ^ Sunderlin v. Bradstreet, 46 jST. Y. * Dunham v. Powers, 43 Vt. 1. 188 ; Taylor v. Church, 1 E. D. Smith, ' White v. Carroll, 43 N. Y. 161. 279, 10 N. Y. Leg. Obs. 87, 8 N. Y. 452. '» Davies v. 8nead, L. R., 5 Q. B. 608. CH. VA.j DEFENSES. 697 Although a defendant cannot prove an isolated act or declara- tion by plaintiff toward or relative to defendant long before the alleged speaking,' yet he may prove a series of provocations commencing long anterior to the speaking and continued from time to time down to and at the time of the speaking ; ' and so in assault and battery/ Specific performance. — It is a good defense to an action for specific performance that the defendant, a woman little versed in business, was induced to execute the paper in the absence of legal advice, and signed it under a misapprehension of its contents ; ' although there be no direct proof of fraud or undue influence,' if it would be inequitable to decree a specific performance ; ° or where the agreement does not fully express the terms'of tlie con- tract.' So if the buyer be misled by a plan presented by the seller.' Stamp. — Under the old practice, where an instrument was void for the want of a proper stamp, it was not necessary to plead the want thereof affirmatively. Such defense was available under a denial of the execution of the instrument." The same might undoubtedly be done under the Code, although it would unques- tionably be proper to plead the want of a proper stamp affirma- tively. Surety. — It is a good defense to an action against a surety that he requested the creditor to collect the debt from the principal, and the creditor refused or neglected to do so, pro- vided the principal was then solvent and the debt was collectible ; and, from a subsequent change in his circumstances, the debt has become uncollectible.'" But the creditor must be requested to ' Richardson v. IfoHTirop, 56 Barb. ' Denny v. Hancock, L. R., 6 Ch. 105 ; Stellar v. Nellis, 43 How. 163. App. 1. ' Richardson v. Northrop, 56 Barb. ' Dawson v. McDonald, 3 Mees. & 105. Welsb. 36; Field v. Woods, 7 Ad. & ^ Stellar v. Nellis, 43 How. 163, but Ell. 114, 34 Eng. 0. L. see Puluer v. Harris, 61 Barb. 78. "> Paine v. Packard, 13 Johns. 174 ; * Cuff V. Dorland, 55 Barb. 481. King v. Baldwin, 17 id. 383 ; Rem- ^ Dunnage v. White, 1 Wils. Cb. sen v. Beekman, 35 N. T. 555 ; Singer Rep. 67. V. Troutman, 49 Barb. 184. See the * Cuff V. Dorland, 55 Barb. 481 ; doctrine of discharge of sureties in Shrewsbury, etc., v. Northwestern, etc., consequence of delay by the creditor' 6 H. L. Cas. 113 ; Falcke v. Gray, 4 fully discussed by the editor of the Drewry, 659. present edition in note to ClaAe's Oh. ''Cuff V. Dorland, 55 Barb. 481; ■p.^& (-p.'15,marg.pp.). In addition to Wright v. Weeks, 3 Bosw. 373, 35 N. T. the cases there cited, see Oalhraith v. 153. Fullerton, 53 TU. 136 ; Banks v. Burns. 698 DEFENSES. [CH. VA. collect the debt by process of law ;' but the debtor must be solvent at the time of such request.^ But notice before the obligation be- comes due to sue it when it shall become due is insufficient.' Mere delay, without any request by the surety, is not sufficient.' That the creditor had commenced a suit, attached sufficient of the principal's property to satisfy the note, but discontinued the suit, thus releasing the levy under the attachment ° is not a defense to a surety. But where landlords advanced money to their tenant on a joint note of himself and a surety, and afterward took a seciirity for this and another sum advanced at the same time by an assignment of furniture of the tenant by way of mortgage, held that, by taking the furniture under a distress for rent in arrear, they discharged the surety.' If a surety sign an agreement, in the body of which another contracting party is named, he is 'pnTna facie bound, although delivered, without being exe- ciited by such other party ;' otherwise if it be shown he executed it on condition that it was not to be delivered until executed by such third person," unless such third person be the prin- cipal in the bond." So if one execute a bond to which the name of another has been forged without his knowledge he is not liable." Plaintiff sold out his interest in a firm, taking a bond of indem- nity against its debts, signed by defendant as surety. After the 2 Lans. 52, 46 N. Y. 170 ; Murray Hoff- » People v. Bostwiek, 43 Barb. 9, 32 man's note to Ex parte Mure, 2 Cors N. Y. 445 ; UUl v. Sweetzer, 5 N. H. Ch. Rep. 74, and Sumner's note to 168 ; Farrington v. Bank, 24 Barb. Reea v. Berrington, 2 Vesey, Jr. 540. 554 ; Miller v. Oamhie, 4 id. 146 ; • V. Troutman, 49 Barb. 182. Seymour v. Gaining, 1 Keyes, 587 ; ' Herrick v. Borst, 4 Hill, 650 ; Small v. Smith, 1 Denio, 583 ; Awde v. Thompson v. Sail, 45 Barb. 214 ; Dixon, 5 Eng. L. and Eq. Rep. 512, 6 Merrit v. Lincoln, 21 id. 249. As Exclieq. 869 ; Leaf v. Gibbs, 4 Carr & to the meaning of insolvency, see same Payne, 466 ; U. S.Y.Leffler, 11 Pet. cases, and 43 N. Y. 75,4 Rob. 427, 434. 86 ; Mans v. Brimridge, 8 De Gex, ' Seeln v. Grawford, 8 Wright (Pa.), MacNaghten and Gordon, 100 ; bat see cited 3 Am. Law. Reg. N. S. 310. McCormiek v. Bay City, 23 Mich. 457, * Tan Rensselaer v. Kirkpatriek, 46 contra to People v. Bostwiek, supra ; Barb. 194. also State v. Pepper, 8 Am. Law. Reg. = BeUmJis v. Lowell, 4 Pick. 153 ; but N. S. 665, 31 Ind. 76 ; and see SpUtler v. see Mahew v. Grickett, 2 Swanst. 185, James, 32 id. 202, as to a negotiable and note 190, as explained in Wade v. note passed to a bona fide holder ; also » Goope, 2 Simons, 160-1. ZeiglUer v. Beasley, 44 Geo. 56 ; as to ^ Pearl v. Deacon, 1 De Gex and note being ordered to be canceled. Jones, 461, aflarming 24Beav. 186. ' Williams y. Marshall, 42 Ba.b. 524. ' Dillon V. Anderson, 43 N. Y. 234 ; '» Seeley v. People, 2 Am. L. Reg. N. McLaugMin v. McGovern, 34 Barb. S. 344. 208 ; Parker v. Bradley, 2 Hill, 584. CH. VA.J DEFENSES. 699 execution of the bond an indebtedness was changed from an account to a note, payable infuturo. This note was subsequently sued, merged in a judgment, and paid by plaintiff without any notice to defendant. Held, defendant was discharged.' A surety is not liable upon a bond with the name of the payee in blank.^ An agreement by a creditor with a surety, to extend the time of payment, so as to discharge a surety, may be found from the circumstances of the transaction, as the payment of interest in advance, if such was the intention of the parties with- out an express agreement to that effect.' Where the holder of a note has in his hands a fund belonging to one of the makers, who is the principal debtor, the other being a surety, such surety may compel the creditor to satisfy the note out of that fund before calling upon the surety.* If one become surety for property to be sold, he is not liable if part of the obli- gation, without his assent, be applied upon an old indebtedness ;° otherwise if with his assent." Where the surety was induced to execute a bond on a repre- sentation by the obligee that the principal was not indebted to him, which statement was untrue, the court directed the bond to be canceled. Where the bond by a surety was given to guaranty the payment of flour to be supplied by the obligee (of a specified quality) in order to enable the principal debtor to execute a con- tract, and the obligee designedly supplied inferior flour so that the contract was annulled, the obligor is entitled to have the bond canceled ; ' so where one becomes surety for a particular article he is not liable if a different one be supplied.' If a surety pay an illegal obligation at the princij)al's request, he is entitled to recover the amount paid.° Telegraph company." — In an action for not delivering a tele- ' Thurber v. Jenkins, 36 How. 65. Shuttleworth, 53 Barb. 357 ; Bates v. ' Squire v. Whitton, 1 H. L. Cas. 333 ; Rosekrans, 37 N. Y. 409, 4 Abb. N. S. 276. but see Van Etta v. Evenaon, 28 Wis. * Mo Williams v. Mason, 6 Duer, 276, 33, that such a bond is binding, where 2 Abb. N. S, 211, 1 Rob. 576 ; see Sully executed with the name of the payee v. Prean, 10 Bxcheq. 535 ; Stewart v. in blank, with intent that it shall, not- Mr,Kean, id. 675. withstanding, be valid. * Ham v. Greve, 34 Ind. 19. ' Wakefield Bank v. Truesdell, 55 ' Blest t. Brown, 3 Giffard, 450. Barb. 602. ' Grant r. Smith, 46 N. Y. 93. * Wright v. Austin, 56 Barb. 13 ; ' Powell t. Smith. 5 Am. Law Times Moak's note to Bechervaise v. Lewis, 2 Rep. 355, 66 North Carolina Rep. 401'. Eng. Rep. 687, but see Watson v. '» Upon the subject generally see 700 DEFENSES. [CH. V A. graph message at all, an answer which alleges that the company was not responsible for " delays, errors or remissness," contains no defense. These failures imply an imperfect performance, and do not exonerate from liability for entire failure to send." So an answer is not sufficient if it merely alleges that the injury com- plained of was the consequence of his own negligence in not having the message repeated, or sending another; there is no statement of facts from which the court can see negligence as a matter of law.' Tender. — In order to make a tender good, it is not sufficient that the debtor has the money in his pocket, or about him, ready to pay. He must offer to deliver it to the creditor ; ■' unless he dis- pense with such offer by some positive act or declaration.^ One who desires to rescind an agreement on the ground of fraud is bound to tender back what he received under it before suit ; * and must do so promptly after discovery of the fraud.^ Otherwise if he simply seek to recover damages for the fraud without rescission ; " or if the fraudulent purchaser has realized as much by the use of the property as he paid on the purchase.' s Should the party guilty of the fraud abscond, the best tender which the party defrauded can make, is all that is required. In such case a tender to the wife of the party committing the fraud, if she be in the possession of the fruits of it, is sufficient." Readi- ness to pay a note at the place where it is payable, on the day it falls due, bars the recovery of further interest and costs.' If the maker desire to avail himself of such readiness as a tender, he must aver that the money has been actually brought into court, Scott & Jarnegan on Telegraph Com- Bassett v. Brown, 105 Mass. 551 ; panieg. ' Haima v. Shields, 34 Ind. 84 ; Oates v. ' Baldwin v. U. 8. Telegraph Co., Bliss, 43 Vt. 399 ; Goldsmith v. Bryant, 6 Abb. ST. S. 405 ; see same case after 36 Wis. 34. a trial on the merits, 1 Lans. 135. ^ Central Banli v. Pindar, 46 Barb. The reversal of this case, after a trial 467 ; Cohh v. Hatfield, 46 N. Y. 533 ; on the merits (45 N. T. 744), did not Bassett v. Brown, 105 Mass. 551 ; Bruce affect these questions, but was upon v. Davenport, 5 Abb. N. S. 185, 3 Keyes, the ground that the damages were im- 473 ; Manna y. Shields, 84 Ind. 84 ; properly assessed. Gates v. Bliss, 43 Vt. 399 ; Goldsmith •^ Strong v. Blake, 46 Barb. 337 ; Lewis v. Bryant, 36 Wis. 34. V. Mott, 36 N. Y. 403 ; Uobh v. Hatfield, « Ely v. Mumford, 47 Barb. 639. 46 id. 533 ; Lacy v. Wilson, 34 Mich. ' Pearse v. Pettis, 47 Barb. 376. See 479. Kinney v. Kiernan, 3 Lans. 493. ' Strong v. Blake, AQ Barb. 231 ; Lacy * Goldsmith v. Bryant, 36 Wis. 84. V. WUson, 34 Mich. 479. « Hill v. Place, 5 Abb. N. S. 18. 7 " Central Bank v. Pindar, 46 Barb. Rob. 389. 467; Odbb v. Hatfield, 46 N. Y. 533; OH. VA.j DEFENSES. 701 and so bring it.' If the tender be made after suit, the costs thereof must also be tendered." But, although if tender be made before suit defendant is entitled to costs, plaintiff is entitled to recover the amount of the tender ; ' and, if the tender is not equal to the recovery, he is entitled to take the same and credit it thereon.* If defendant recover a verdict, he cannot take back money brought into court on a plea of tender ; ^ but the court may order it paid to defendant on his costs." Even if the plaintiff be nonsuited he is entitled to the amount paid in. If, however, the defendant be an executor or administrator, and ask to be allowed to take the money out of court on the ground that he paid it because unacquainted with the affairs of the deceased, the court, on that ground, on motion, may allow him to do so.' If the plea do not aver that the money is brought into court, and it be not in fact brought in, the remedy of the plaintiff is to return the plea ; ° as, by accepting it and going to trial, he waives the objection.' In equity, a tender may be allowed at any time." A plea of accord and satisfaction is not supported by proof of a tender." If a party, after making a tender, go off, saying, he will con- sult' his lawyer and return, this is a waiver of a previous ten- der.'" A tender under protest is good." If a debtor have his choice of two places to pay or deliver articles, he is bound to give the creditor notice of which place he elects, and a plea of tender of specific articles must state that they were kept ready until the uttermost convenient time of the day." In an action ' Simpson v. French, 25 How. 464 ; " RatKbone v. Stedman, Cooke's R. Hill Y. Place, 5 Abb. N. S. 18, 7 Bob. 54 (p. 83, ed. 1872). 389 ; Bosevelt v. Wew York, etc., 30 ' Anonymous, Sir Geo. Cooke's Rep. How. 226 ; People v. Banker, 8 id. 358 ; 10 (ed. 1872), following which is an Kortright v. Cody, 23 Barb. 490 ; Halaey interesting note as to the origin and V. Flint, 15 Abb. 368; Brown v. Per- practice of paying money into court. guson, 2 Denio, 196. Lane v. Wilkinson, Cooke's Eep. 36 (p. ' People Y. Banker, 8 How. 258. 56, ed. 1872). " Hill Y. Place, 5 Abb. N. S. 18 ; ' Simpson y. French, 35 How. 464. Knight v. Beach, 7 id. 241 ; Thurston v. « Knight v. Beach, 7 Abb. N. S. 241 ; Marsh, 14 How. 574 ; Slack v. Brown, Rosevelt v. Wew York, etc., 30 How. 13 "Wend. 390 ; Wood y. Perry, 1 Barb. 326. 114 ; Crockpay y. Martin, Cooke's Rep. '° Webster v. French, 10 N. Y. Leg. 129, 195 (ed. 1872) ; but see Brush v. Obs. 126 ; Illinois supreme court, S. C, Kohn, 9 Bosw. 589 ; Logue v. Qellick, 11 111. 154. 1 B. D. Smith, 398 ; Justison v. Oraio " Hammond y. Christie, 5 Rob. 160. ford, 25 How. 464-5. " Currie v. White, 7 Bob. 638. * Dakin v. Dunning, 7 Hill, 30. " Scott v. Uxbridge, etc., L. R., 1 C. P. ' Oox Y. Robinson, Cases Temp. 596. Hardw. (Lees' ed., 1815), 306. '" Aldrich v. Alber, 1 Me. 120, ex- 702 DEFENSES. [CH. VA. for not indorsing a note, the complaint must aver tender of one ready for indorsement.' A tender to one who is, in fact, the attorney of the creditor, although he deny his authority, is good f and so to one authorized to collect.' It has been held that, under an agreement to convey land on a certain day, without designating a place for perform- ance, a tender by the vender, at the vendee's residence, though he be absent, is good, he having previously said he would be at home.* Where a party fraudulently absents himself on the last day, or evades a tender, he cannot object on account of the want of one ;" but the answer must allege that a tender or payment was prevented through trick or fraud on the part of the plaintiff;' and so one to whom a tender is required may, if absent, by his subsequent conduct, be held to have waived a personal tender.' A. manual tender or offer may be and is waived by an absolute refusal to receive the money ; ' so where the party has disabled himself from complying ; ° or fraudulently represent that he has." If the contract be for the delivery of merchandise at a particular place, readiness thereat, if the vendor do not appear, is sufficient." If no objection be made to the manner of the tender, none can subsequently be made." If the creditor refuse to receive a tender on one ground, he cannot afterward insist upon another which might have been obviated." There is a well-known pro- ceeding, somewhat similar to tender, after suit in ejectment, for non-payment of rent. In siich cases the court, on motion, may order all proceedings stayed on payment of the rent due, and plaining Rdbhins v. LvAie, 4 Mass. 474, Slingerland v. Morse, 8 Johns. 474 ; as alleging that " always " since the Bellinger v. Kitts, 6 Barb. 274 ; Vati- note defendant had been ready. pell v. Woodward, 3 Sandf. Cli. 143 ; ' Gallagher v. Mason, 6 Hill, 346 ; Merserole v. Archer, 3 Bosw. 376 ; Og- Westcott V. Keeler, 4 Bosw. 564 ; Stock- den v. Mnrshnll, 8 N". Y. 340 ; Tracy v. bridge v. SehoonmaJcer , 45 Barb. 100. Albany, etc., 7 N. Y. 473 ; Foote v. West, " Mclniffe v. Wheelock, 1 Gray, 600. 1 Denio, 544 : Metcalfe's note to Ranay ' Dexter v. Broat, 16 Barb. 340. v. Alexander, Yelv. 77. " Smith V. Smith, 35 Wend. 405, as « Glark v. Crandall, 8 Barb. 613 ; explained, 3 Hill, 351. Main v. King. 8 id. 535 ;- Ifewcomb ^ Southworth V. Smith, 7 Gush. 89 ; v. Brackett. 16 Mass, 161 ; Jackson t. Smith v. Smith, 35 Wend. 405, as ex- Jacob, 3 Bing. (N. C.) 869 ; 83 Eng. C. plained, 3 Hill, 351 ; Judd v. Ensign, L. ; Holmes v. Holmes, 13 Barb. 137. 6 Barb. 358 ; Noyes v. Olurk, 7 Paige, '" Glark v. Grandnll, 37 Barb. 73. 171; Holmes v. Holmes, 13 Barb. 137; " Bronson v. Wiman, 8 N. Y. 182. 9 N, Y. 525. '- Douglass v. Patriek, 3 Term E. 683. * Dwigfit V. Webster, 33 Barb. 47. " Rieha/rdson v. Jackson, 8 Mees. & ' Howard v. Hulhronk, 33 How. 64. Welsh. 398 ; Carman v. Pultz, 31 N. Y. » Stone V. Spragtie, 20 Barb. 509 ; 547. OH. V A.J DEFENSES. 703 costs.' If, however, ejectment be brought for not repairing the premises according to a covenant in the lease, as well as for non- payment of rent, the rule will not be granted unless the defend- ant, in addition, give ample security to repair according to the covenant;" otherwise in ejectment for sub-letting, contrary to the terms of the lease." A tender to one of two joint contractors is good ;* a tender of a deed executed in a county other than that in which the land lies, if acknowledged before a justice of the peace, is not good, unless accompanied by the county clerk's certificate of the official char- acter of the justice, so it can be recorded in the county where the land lies, if objected to on that ground.' In an action upon an agreement to repurchase bonds, the purchaser must tender them and demand payment of the contract price ;° if the pledgee of property sell it illegally, no tender of the amount for which it was pledged is necessary.' Where a debtor, pursuant to his con- tract, tenders the goods to be received in payment, he may hold them as a bailee for the creditor ; ° or, at his election, as a debtor ;' but the rule does not apply to a mere executory contract to sell ;" tender of the premium due on a policy of insurance is equivalent to payment." Where a vendee, in an executory contract, assigns it, and the vendor tenders performance to the assignees, they must demand performance of the vendors and not alone of their assignor.'" So tender should be made to an assignee if known." Title to real estate. — In case a defendant, sued in trespass, desire to plead title to a way, and a defense to such of the alleged trespasses as were committed by traveling it, he should describe the way and then allege that as to so many and such of the ' Anonymous, Sir Geo. Cooke's Rep. Abb, 467 ; Jones v. Gliff, 1 Cromp. & 13 (ed. 1872, and note) ; GoodtitU v. Mees. 540. 3 Str. 900 ; PUllips v. Doo- » Desarts v. Leggett, 16 N. Y. 583 ; little, 8 Mod. 345. Campbell v. Eoyt, 33 Barb. 555 ; Jusii- ' Temple v. Bacchus, cited in note, son v. Crawford, 25 How. 464, 465. Cooke's Rep. 13 (ed. 1872). » Desarts v. Leggett, 16 N. Y. 583. 2 Bocks V. Atease, Cooke's Rep. 42 '<• Campbell v. Soyt, 23 Barb. 555. (66, ed. 1872). " Fried v. Boyal Ins. Go., 47 Barb * Ga/rman v. Pultz, 31 N. Y. 547 ; 128. BycTtman v. Mayor, 7 Barb. 498, 5 N. '^ Dustan v. McAndrew, 10 Bosw. Y. 434 ; BrinckerhoffY. Olp, 35 Barb. 27. 130, 44 N. Y. 72. 5 Smith V. Smeltzer, 4 Abb. 469, 1 " Cook v. Kelly, 9 Bosw. 358, 1 Pars. Hilt. 387. See also Stevens v. Sunt, 15 Cont. 346, note y ; and see Pearce v. Barb. 17, 19. Pettis, 47 Barb. 376 ; Kinney v. Kier- « Haga/r v. King, 38 Barb. 300. nan, 3 Lans. 493. ' Glarke v. Meigs, 23 How. 340, 13 704 DEFENSES. [CH. V A. alleged breakings and entries and injuries as were committed while traveling upon, over and along the same he pleads title. He should not plead title generally, for if a trespass be shown outside of the way, plaintiff would recover and be entitled to costs even if the way were justified.' In all cases where the complaint does not definitely describe the close in which the trespass is claimed to have been committed, or defendant claims only a part thereof, defendant should carefully describe the close he claims, and plead title to only so much of the lands mentioned in the complaint." Trade-mark. — ■ In an action to restrain the defendant from imitating plaintiff's trade-mark, it is a good defense that plaintiff, in and by his trade-mark, makes representations which deceive the public. But a defendant who fraudulently imitates the plain- tiff's trade-mark will not be heard to raise the objection that the plaintiff' 's goods are injurious to health.^ It seems that a defend- ant may use the same trade-mark as the plaintiff for an entirely different class of goods.'' A long delay in commencing proceed- ings to enjoin an infringement is a good reason for refusing an injunction.' Trespass. — If the owner of land erroneously fixes the bound- ary of lands, he is estopped from maintaining trespass for injuries committed on a portion of what he conceded belonged to defend- ant * before the mistake is corrected and the authority to enter thereon revoked.' Before the Code a defendant might show he was a tenant in common with plaintiff', or entered by leave of a tenant in common." Under the Code, however, leave of a tenant in common should probably be pleaded. In trespass for cutting timber it is a good defense that after an agreement by the owner of the real estate to convey to plaintiff, but before the conveyance, the owner gave defendant a license to cut the same.' ^ Heath v. Barmour, 53 Barb. 444, wasnot pleaded to all the real estate on 35 How. 1 ; Hall v, HodsMns, 30 id. whicli tlie trespasses were committed, 15 ; Morss v. Jacobs, 35 id. 90 ; Shall but only sucb were justified as were V. Oreen, 49 Barb. 311, 34 How. 418, committed within certain bounds. Tates' PI. 598 ; Howard v. Alhro, 100 = CnrtU v. Bryan, 36 How. 33. Mass. 236 ; see Alleman v. Bey, 49 ^ Amoskeag, etc., v. Garner, 6 Abb. Barb. 641 ; Liitle v. Denn, 34 How. 68, N. S. 265, 55 Barb. 151. 1 Keyes, 235, 34 N.Y. 453 ; and Huddard * Dei^ey v. Bordwell, 9 Wend. 65. " i/,L. li., 5 Q. B. 139, which turned '' Buiiham v. Stnyresant, 11 Johns. on the English system of pleading by 569 ; Terry v. Chandler, 16 17. T. 354. new assignment. There is really no * Bawson v. Murxi', 4 Pick. 127. conflict bet ween jE&ai/j V. fiar??!om% and ' Pra-M v. Potter, 21 Barb. 589; Ta- Moras v. Jacobs. In the latter case title bor v. Robinson, 36 id. 483. OH. V A.J DEFENSES. 705 It has been held that trespass would not lie for nailing a board over plaintiff's premises, thereby disturbing the column of air over it ;' but we doubt the soundness of the decision. If a part of plaintiff's premises may be thus shaded, why not the whole? The quantity of his land affected goes to the amount of damages, and not. the cause of action. Trover. — One who, by license from the owner of the soil, throws out soil for the purpose of searching for minerals, has a sufficient possession, as against a wrong-doer, to maintain this action.'' In an action for converting goods bought by plaintiff, but left with defendant under a special agreement, wtiere the only proof of conversion is a demand and refusal, defendant may show that at the time of the purchase plaintiff knew the goods belonged, not to defendant, but to a third person, who took the goods from defendant before the demand, so that before the demand they were seized by the sheriff under an attachment against the true owner.' The usual warranty of title, implied on a sale of chat- tels, does not estop the seller, in an action for conversion, from setting up that he had been deprived of their possession by para- mount title.* Undertaking. — Where the complaint, upon an undertaking given on obtaining an injunction, alleges that judgment was rendered in the injunction suit in favor of the defendants therein, without stating the grounds of the judgment, nor that the court decided the plaintiff therein was not entitled to the injunction, an answer denying that the court so decided or that the plaintiff has been damnified, or that the defendant is indebted to him, is good.' It is a good defense to an action on an undertaking given on behalf of a defendant in an attachment suit, in order to obtain a redelivery of property attached, that the attachment was set aside as not authorized by the facts of the case." Way. — Where a way of necessity is claimed in consequence ' Pickering v. Rudd, 4 Camp. 219 , ' De Forest v. Baker, 1 Abb. N. S. see 3 Camp., Lives, Ch. J., 169. 34, 1 Rob. 700. ' iVorftewi V. J9c>wrfe?i, 11 Bxcbeq. 70. ^ Bildersee v. Aden, 10 Abb. N. S. ' Huntington v. Douglass, 1 Kob. 204, 163, explaining S. C. on demurrer, 1 Abb. N. S. 385. 8 id. 171. The case in 10 Abb. gives * Huntington v. Thomas, 1 Rob. 204, tbe form of tte answer beld good. 1 Abb. N. S. 385. 89 706 DEFENSES. [CH. V A. of a grant to defendant of lands, without means of access thereto, the plea should allege that the party had, at the time of the tres- pass, no other way to the premises granted to him by the plaintiff except to pass over the lands of the grantor.' Work and labor. — A merchant who discovers that his clerk and salesman is a partner in another concern, and persists in sell- ing his employer's goods to snch concern on credit, contrary to orders, has a right to rescind the contract and discharge him. A principal is entitled to the best efforts of his agent, and the latter has no right to put himself in a position where their interests may conflict.'' Plaintiff agreed with defendant to serve him three years as manager of certain iron works, and " during that time to use his best endeavors to promote the interests of the defendant, and attend to and carry out all reasonable requests made to him by defendant." Plaintiff brought suit alleging a wrongful dismissal by defendant without any reasonable or prob- able cause, and that defendant refused to pay plaintiff any salary after such dismissal ; held, that a plea that " the plaintiff did not, while he was in the defendant's employ under the agree- ment, use his best endeavors to promote the interest of the defendant according to the agreement, and, therefore, the defend- ant dismissed the plaintiff and refused to pay him any salary after such dismissal, was good.' The plaintiff was a lace buyer. The defendant hired him by the following contract : " Messrs. M & IS. agree to engage Mr. H P for the term of three years from Monday, the 15th of August, 1859, at the yearly salary of £500, payable monthly, Mr. H P to give the whole of his services, and to be advised and guided by Messrs. M & IST, if necessary." After being engaged in the purchase of lace something over a year, M & N ordered plaintiff to fold some lace, which he declined to do, on the ground that he was employed to buy lace only, and folding it was beneath his position. For such refusal he was discharged. On plaintiff offering evidence to show that he was hired to buy lace only, defendants objected, that inasmuch as the contract of hiring was void, unless in writing, it was not competent for plaintiff' to add by oral evidence a term not found in the written ' Proctor V. Hodson, 10 Exclieq. 834, ' McDonald v. Lord, 3 Rob. 7. and see note at end of the case, John- ' Lomax v. Arding, 10 Excheq. 734. son's Am. ed. OH, V A.J DEFENSES. 707 contract. The objection was overruled and the evidence given. The court submitted it to the jury vi^hether plaintiff wsls hired as a "buyer" merely, and whether the order to "card" the lace was such a reasonable one as plaintiff was bound to obey. The jury found for the plaintiff. Held correct.'] ' Price Y. Mouat, 11 C. B. N. S. 508, 103 Eng. C. L. [*615] * CHAPTER YL THE REPLY. The object of the reply under the Code, as now amended, is merely to controvert and put in issue new matter set up by way of counter-claim in the answer. Any other new matter in the answer is, for the purpose of the trial, considered as controverted, without any denial on the part of the plaintiff. The subject of the reply will be considered under the following general divisions : 1st. What the reply must contain, and how pleaded. 3d. Verification of the reply. 3d. Sham, irrelevant and frivolous. 4th. Supplemental reply. SECTION I. WHAT THE REPLY MUST CONTAIN, AND HOW PLEADED. The Code contains the following provision in respect to the reply : When the answer contains new matter constituting a counter- claim, the plaintiff may, within twenty days, reply to such [*616] *new matter, denying generally or specifically each allegation controverted by him, or any knowledge or information thereof sufficient to form a belief ; and he may allege in ordinary and con- cise language, without repetition, any new matter, not inconsistent with the complaint, constituting a defense to such new matter in the answer ; and the plaintiff may, in all cases, demur to an answer containing new matter where, upon its face, it does not constitute a counter-claim or defense ; and the plaintiff may demur to one or more of sucii defenses or counter-claims, and reply to the residue of the counter-claims. And in other cases, when an answer con- tains new matter, constituting a defense by way of avoidance, the court may, in its discretion, on the defendant's motion, require a reply to such new matter; and in that case the reply shall be subject to the same rules as a reply to a counter-claim.' The above language in relation to the denial by the plaintiif of the counter-claim is nearly the same with that of section 149, respecting the denial by the defendant of the plaintiff's answer ; it will be observed that the word " material " is omitted. The ' Code, § 153. SEC. I.J MATTER 0¥, HOW PLEADED. 709 answer of the defendant, by section 149, must contain a denial of ^'eaoh material allegation," etc. The omission, however, is unimportant ; the intention manifestly being to require nothing further by way of denial from the plaintiff in his reply, than from the defendant in his answer.' This is the more apparent from the fact that, by section 168, it is only "every material allegation of new matter in the answer constituting a counter- claim," not controverted, which is to be taken as true. It is not necessary, therefore, for a party in his reply, any more than in an answer, to controvert, or to confess and avoid, an invmaterial allegation in the answer, no matter under what form of [*617] irrelevant or redundant *matter it may appear, whether as a conclusion of law, or matters of mere evidence, or other matters of surplusage. The section above quoted has been amended at almost every session of the legislature since the Code at which amendments have been made. Under the original Code, the reply was made to contain a particular denial of each allegation of the answer controverted by the plaintiff, or of any knowledge thereof suffi- cient to form a belief ; and also " any new matter, not inconsist- ent with the complaint," in avoidance of the answer.' No demurrer was permitted to the reply. The amendment of 1849 retained this language, but permitted the plaintiff to reply " gerv- erally or particularly," and allowed a demurrer to the reply for " insufficiencfyP It also permitted the plaintiff to demur to one or more defenses and answer the residue.^ This was amended in 1851, by requiring a specific denial to each allegation of new matter, constituting a defense or set-off ; and authorizing the plaintiff to allege in his complaint " any new matter, not inconsistent with the complaint, constituting a defense to such new matter in the answer." * The section, as amended in 1852, restored the general denial and limited the reply to such new matter as constitutes a cowfiter-clai/m, that word being sub- stituted for the term " set-off ; " and in this respect it is not [*618] altered by *the amendment' of the section as above quoted. ' 7 L. 0. 240. ■> Code of 1851, § 153. 2 Original Code, § 131. " Laws of 1855. ' ' Code of 1849, §§ 158 and 155. 710 EEPLY. [CH. VI. The use of the reply in pleading, it will be observed, has been very Biiich restricted by the late amendments. Heretofore it was necessary, not only to take issue upon every material fact alleged by way of defense in the answer, but also to set up specifically such new matter as the defendant intended to rely upon in avoidance of the answer. Thus, in Walrod v. Bennett^ the defendant answered that the plaintiffs who brought the suit jointly were not the joint owners of the property. This averment was held new matter requiring a reply ; and, if not specifically contro- verted, was to be regarded as admitted on the trial. In that case it was held, that not only was no evidence required to establish the fact, but evidence to contradict it was inadmissible. All this is changed under the present amendments. Such an answer, and indeed any answer setting up new matter not constituting a counter-claim, is deemed to be controverted, precisely the same as though the plaintiif had put in a reply traversing the allegations. In the former edition of this work, and before any decisions to the contrary had been made, I endeavored to show that, ncitwith- standing the language of the Code appeared to do away entirely with the necessity of a reply, in any case, to new matter [*619] not constituting a counter-claim, and to permit *the adverse party, on the trial, to controvert such new matter, or to avoid it by any competent testimony which he may have, and by the proof of any matters which vs^ould be a proper reply to such allegations, yet that, inasmuch as there was nothing in the Code absolutely /b^^S'iiZc^m^ such a reply, it might be allowoMe, and in some cases proper, if not absolutely necessary.* I have [*620] been corrected, * however, on this point by subsequent decisions, the great majority of which seem to hold that a reply to new matter not constituting a counter-claim is a [*621] * pleading not authorized by the Code, and that the courts will not permit s\ich a pleading to be interposed or placed upon the record for any purpose.* 1 6 Barb. S. C. 144. * I take the liberty of inserting here the following extract from the text of the former edition, containing the reasons upon which the opinion was founded— irrespective of any judicial decision to the contrary — why such reply might be considered allowable and proper. The language of the Code Is, that the defendant may allege " any new matter not SEC. I.J MATTER OF, HOW PLEADED 711 [*622] It was said, indeed, by Justice Baeculo, in Roscoe v. Maison,^ that a plaintiif having elected to reply could not, on a q^iestion of verification, deny that he was bound to reply, thus recognizing, indirectly at least, the right of a plaintiff, if he were so advised, to put in a reply, though not bound to do so. But subsequent decisions have not sustained this view of the question. Thus, in Sillimcm v. Eddy^ it was held by Justice » 7 How. Pr. 121. ^ 8 How. Pr. 133. inconsistent witli ttie complaint constituting a defense to such new matter in the answer." It is said, no doubt with entire accuracy, that the term " such new matter " relates to the first clause of the section, namely, new matter constituting a counter- claim. Granting this to be so, still there does not appear to be any thing in the Code to prohibit such a reply, and a variety of cases might be very readily mentioned in which it would be manifestly proper. Thus, for example, take the case provided for by statute,* where a defendant pleads a discharge under the United States bankrupt law, in which case, under the old practice, the plaintiif might generally reply that such discharge was obtained by fraud, and give notice specifying the acts of fraud on which he relied to sustain his case. Would not a reply, in such a case, be allowable? Bve» if not strictly within the letter of the Code, how could a defendant take advantage of it? The only way it could be reached would be by motion to strike out such matter as irrelevant or redundant matter; but this is done only on motion of a person " aggrieved ; " and in such case, instead of being aggrieved, it appears on the face of the papers that the defendant is actually benefited by being thus apprised of the very point on which the plaintiff relies to avoid the effects of the discharge. An answer of infancy is a similar case. The reply sets up that the goods furnished were necessaries, or sets up a new promise by the infant on arriving at full age ; there seems no sufficient reason for striking out such a reply as irrelevant or redundant matter; but in such a case, perhaps, the court might hold the plaintiff strictly to the matter set up, and not suffer him to avoid the defense in any other manner, par- ticularly if it appeared that the defendant had been misled by it in preparing for the trial. Many other cases might be cited by way of illustration, but the above will be sufficient. I conclude, therefore, that by the rules of pleading under the Code, the reply may contain, instead of a general denial of the allegations in the answer, whether relating to a counter-claim or not, an admission thereof, and any new and sufficient matter in avoidance not inconsistent with the complaint. This opinion is confirmed by the fact jhat the amended Code of 1853 retains section 135 as it stood before, providing that if the reply of the plaintiff to any defense set up by the answer of the defendant be insufficient, the defendant may demur thereto. If it be admitted that such a reply is proper and allowable, I am not prepared to say but it might, in some cases, be actually necessary, in order, as in the case of bank- ruptcy above alluded to, to authorize the plaintiff to give the evidence on which he relies to invalidate or avoid the effects of the defense. The Code provides that the " allegation of new matter in the answer, not relating to a counter-claim, or of new matter in a reply, is to be deemed controve/rted by the adverse party, as upon a direct der ial or avoidance^ as the case may require ; " that is, so far as the pleadings are to be received ^s evidence in the action on the trial thereof. The allegations in the answer are to be deemed controverted; i. e., the plaintiff denies them to be true, and throws upon the defendant the burden of the proof. Undoubtedly, the plaintiff will then be allowed to offer evidence to disprove the defense, the same as maybe done under any * Session Laws, 1846, p. 305. 713 BEPLY. [CH. VI. CRiprEN that a reply is entirely unnecessary except to a counter- claim, and can have no legal bearing upon the rights and obliga- tions of the respective parties existing under the previous pleadings. In that case, however, the court refused to set aside the reply for the irregularity of omitting to verify it, and it V7as suf- fered to remain upon the record, notwithstanding it could not be other issue. But under such a general traverse, may the plaintiff, in all cases, if the defense relied on be established, be permitted to prove a distinct matter in avoidr- ance of the defense ^N-lthout setting it up and apprising the defendant of the nature thereof. It is not quite clear what is meant by the expression, " controverted^ as upon a direct denial or avoidance." The term controverted^ as used elsewhere in the Code, it seems, means a mere denial or traverse ;* the term avoidance implies an admission of the fact, and the two appear to be in some degree Incompatible. We can readily understand how an allegation may be deemed controverted as upon a denial^ but not how it may be deemed controverted as upon an avoidance. Matter pleaded in avoidance of a cause of action or defense does not in this sense controverU that is, traverse, or deny, the cause of action or defense. If, therefore, the term controverted is to be regarded as the controlling word of the sentence, then section 168 may be construed merely as limiting the effect of the pleading as evidence in a cause, and not as conferring on the plaintiff the right of rebutting a defense by evidence, going merely in avoid- ance, in the same manner as though such rebutting matter had been specially set up by a reply. The language of the section is, at all events, fairly open to this criti- cism; and though, perhaps, the framers of the Code (or of the amendments) may have intended to admit any reply in evidence to such new matter without being pleaded, yet it is for the courts, in their discretion, to say whether it should be so construed or not. (If a reply is, under no circumstances, allowable, the consequence is that, in a certain class of cases, the real and substantial issue to be tried is not raised upon the face of the pleadings. This is a glaring and manifest defect, and absolutely inconsist- ent with any logical system of pleadings. Take the following, by no means an extreme case, for an example : A defendant sets up, by way of answer, the statute of limitations in an action on contract. No reply is put in. The 'defense is not to be taken as. true, but is deemed controverted by the plaintiff, and the defendant must strictly prove it. Suppose the plaintiff rely on a new promise to take the case out of the statute. The new promise, it has been lately held in this State, is the substantial ground of the action. May the plaintiff give it in evidence without setting it up in his reply? In other words, may he prove his real cause of action without stating it anywhere in his pleadings? He fully admits the fact alleged in the answer, that the cause of action did not accrue within six years next before the commencement of the action, and therefore, but for a new fact, which has given him a new cause of action, is fully discharged. Why, if pleadings are intended to present the issue to be tried, should not this new fact be set up in the reply? Even though the construction be correct, that the Code does not absolutely demand it in order to let in the evidence, would not the safer and more prudent course be, in all such cases, to allow this new fact to be pleaded, and thus apprise the opposite party of the real cause of action? for a judge might well hesitate to admit such evidence (if duly objected to), on the ground that the defendant was, at least, entitled to be apprised of the real cause of action in order to be prepared to meet it. The same would be true if the plaintiff relied on a new promise, in cases where infancy was pleaded, bankrupt discharge, etc., etc. * Code, § 149. SEC. I.J MATTER OF, PIOW PLEADED. 713 made available for any purpose.'" But a still more strict view of the subject has been taken in several other cases, and replies to new matter, not constituting a counter-claim, have been repeatedly struck out from the record as irrelevant, or set aside as un- [*623] authorized pleadings and mere *nullities, as in the cases of Putnam v. Deforest^ Simpson et al. v. Loft et al.^ Wil- liams V. Upton.^ It would seem, then, from the general course of the decisions, that a reply to matter not constituting a coun- ter-claim is not authorized, and that a defendant has strictly a right to object to having such an incumbrance on the record ; or, perhaps, it may be more correctly stated that the court has dis- cretionary power to expunge such a pleading from the record. The objection should be by motion to strike out or set aside the pleading, on the ground of irregularity, that being the general mode of presenting the question to the court where a pleading is unauthorized, and no specific mode of bringing up the question has been provided.' [It has been held, under the clause allowing the court, on motion, to require a reply where an answer contains new matter constituting a defense \)j way of avoidance, that the statute of limitations presents a proper case for so doing ;" but a justification of the truth of a libel or slander does not.'] In the further examination of the subject, our remarks will be considered as applying entirely to the reply to matters strictly constituting counter-claims ; and ia this aspect the subject naturally divides itself into two heads: 1st. The traverse or denial; 2d. The statement of new matter in the reply. 1st. The traverse or denial. — The plaintifl's reply is required by the Code to deny " generally or specifically each allegation con- troverted by him, or any knowledge or information thereof [*624] sufficient to *form a belief" The language, as has just been observed,' is similar to that used with respect to the answer ' " The party," saya the court, ' 8 How. Pr. 334. " neither gains nor loses any thing by '' 8 How. Pr. 205 \I)e'din v. Bt- the reply, except he very unnecessarily mns, 23 How. 290J. informs his adversary of matters re- ' Robinson v. Jiidd, 9 How. Pr. 378 ; lied upon to meet and overthrow the see also Simpson et al. v. Loft et al., 8 defense set up in the answer. This id. 234:. cannot he regarded as good ground of * Hubhell v. Fowler, 1 Abb. N. S. 1. complaint on the part of the defend- ' Maretzek v. Caldwell, 19 Abb. 35 ; 2 ant." Eob. 715. * 8 How. Pr. 146. * Ante, page 616, marg. pp. 90 714 EEPLY. [OH. VI. to the complaint. The use of the traverse or denial in the reply is, therefore, precisely similar to its use in the answer, and for a very manifest reason. The counter-claim, as we have seen, is in the nature of a cross-action. It is a statement of an independent claim, demand, or cause of action on the part of the defendant against the plaintiff in the same suit, instead of driving him to bring a separate suit for such demand. And, therefore, the counter-claim is required, as was noticed on a previous page,' to be stated in the answer substantially according to the rules which govern the statement of an original cause of action. It follows, then, that the reply is neither more nor less than an answer to this cause of action, set up by the defendant in hostility or opposition to the plaintiff's demand. In this view of the case it is of course unnecessary to enter upon any consideration of what the general and special traverse or denial of the reply must be. The remarks made in a foi'mer part of this work on that subject, in reference to the defendant's answer, are considered to be fully applicable to the plaintifPs reply. ° The same rules which govern and test the sufficiency of the general or specific denial of the answer to the plaintiff's complaint, govern, also, and test [*626] the *sufliciency of such denial by the plaintiff in hii answer to the defendant's counter-claim. If the plaintiff fails to reply, the defendant may move for judg- ment, as for want of an answer ; ' but not, it seems, if there ia another issue of fact remaining undisposed of, that is, such an issue as, if found in favor of the plaintiff, would be decisive of the cause." Where a plaintiff has already put in a reply to an answer, which contains also on the same paper a demurrer, and the defendant subsequently serves the same answer without the demiirrer, this is not an amended answer requiring a new- reply.^ So, too, in case a reply has been put in to an answer not verified, and the defendant subsequently serves the same answer verified, this is not an amended answer, and the plaintiff need not reply ' Ante, pages 579-584, marg. pp. ■* GomstoeJc v. Hallock, 1 Code R. N. ^ Ante, pages 405-450, marg. pp. S. 200. ' Code, g 154, Pardee v. Srhenck, 11 ' Howard v. Mulligan Southern R. How. 500 ; Lemon v. Trull, 13 id. 248 ; R. Co., 5 How. Pr. 307 ; 3 Code B. atfirmed, IG id. 576 ; Brid,ge v. Payson, 215. 5 Sandf. 210. SEC. I.] MATTEE OF, HOW PLEADED. 715 to the same under oath, the verification being no part of the pleading. But a supplemental answer requires a reply if it set up matter by way of counter-claim. The denial in the plaintiff's reply, it will be seen, may be general or specific. If the answer is verified, the defendant has a right to have a reply in proper form from the plaintiff, also verified. If the plaintiff, therefore, adopts the general form of denial, it will not be suflicient for him to say that he denies the defendant's answer in manner and form, etc. ; that is, that he denies it as a whole. The denial should be the same as [*626] the general denial by defendant *in his answer. He must deny "eacA allegation " set forth in the answer by way of counter-claim ; so that, if one material allegation of such answer be true, the plaintiff cannot use this general form of denial, because he will not be able to verify its truth. New matter in the reply. — Besides the general or specific denial of new matter in the answer constituting a counter-claim, the plaintiff, in his reply, may " allege, in ordinary and concise language, without repetition, any new matter not inconsistent with the complaint, constituting a defense to such new matter in tJie ansvier." That is to say, he must allege it if he expects it to form part of the subject-matter in issue, or to be allowed to prove it on the trial. [He cannot avail himself of the statute of limita- tions without pleading it.'] The reader is referred to what was said, in a former chapter,'' relative to admitting defenses under a general or specific denial without setting them up as new matter; and it is scarcely necessary to repeat here that those remarks are entirely applicable to the reply. Thus, suppose the defendant, by way of counter-claim, should set up an off-set, as, for example, a matter of account, a promissory note, or any other demand arising on contract. This matter must be stated substantially the same as though embraced in a complaint in an original action, and the reply may traverse, or confess and avoid it in the same way ; and the plaintiff, under a general or specific denial, [*627] may give in evidence any thing going * to disprove the plaintiff's cause of action within the limitations, and in ' Ohappel V. Durston, 1 Cromp. & ' Ante, pp. 400^04, 453, et aeq. Jervis, 1 ; Clinton v. Eddy, 1 Lans. 61. marg. pp. 716 REPLY. [CH. VI. the same manner as the defendant might do under a denial of the plaintiff's complaint. What must and what must not be alleged as new matter in the reply to a counter-claim — what may and what need not be alleged — have been sufSciently considered under their respective heads in the chapter treating of the answer, to which the reader is referred.' It has been thought, however, that a reply in the nature of a set-off, to a defense of set-off by way of counter-claim, would not come under the general rule. Prior to the Code, the plaintiff was not authorized to reply a set-off' to a plea of set-off. The present system, as has been already observed, takes notice of equitable set-offs and defenses as well as legal. Under our Eevised Statutes the equity practice was, as stated by the chan- cellor, in Chapman v. Robertson^ to allow the defendant to liti- gate his set-off in the same suit and not drive him ';o a cross-bill : " The set-off may be litigated and determined upon a general replication to the defendant's answer in this court as M'ell as upon a notice annexed to the plea of the defendant in a suit at law. The statement of the set-off in the answer is a substitute for the notice annexed to the plea. And upon a general replica- tion to the answer, the complainant may introduce any evidence which is relevant and proper, for the purpose of showing [*628] that the demand *claimed as a set-off is not legally or equitably due, or that for any other reason it should not be allowed. The defendant, on the other hand, may introduce proofs to rebut any special defense to his claim of off-set which the complainant may attempt to establish." This was under the equity practice, in which there was nothing which corresponded exactly to the reply allowed by the Code ; for the chancery repli- cation was a mere formal and general denial of the truth of the defendant's plea or answer, and of the sufficiency of the matter alleged in it to bar the plaintiff's suit, and an assertion of the truth and sufficiency of the bill ; ' and special replications were not, in modern times, admitted in practice. But the defense of a counter-claim, as we have seen, includes not only set-offs and » Ante, oh. 6, g 3. ' Coop. Eq. PI. 329 ; Lube's Eq. PI. " 6 Paige's Ch. 637. 378. SEO. I.] MATTEE OF, HOW PLEADED. 717 matters in recoupment of damages, but also, generally, most of those matters which might have been interposed as equitable defenses by cross-bill ; and the practice in chancery pleading was for the defendant to plead to or answer a cross-bill as he did to an original bill.' The reply of the Code is, therefore, I appre- hend, entirely analogous to the answer to a cross-bill in equity. Now, if the defendant had sought to enforce a set-oif by cross- bill in equity, as he might have done, instead of interposing it directly in the original suit, the plaintiff', of course, might [*629] have answered any otlier facts constituting a defense *or equitable set-off' to such cross-claim. This he may now do by reply under the Code.' The following extract from the opinion of Justice Maevin, in Miller v. JLosee, doubtless indicates the correct practice in this respect : " By the present Code, the defendant is authorized to insert in his answer new matters not before allowed. He may state any cause of action arising upon contract. It is called counter- claim, and, by section 153, the plaintiff may reply to such new matter, and allege any new matter constituting a defense to such new matter in the answer. Here we have the word defense again. It is clear to my mind that when the defendant, in his answer, sets forth a cause of action arising upon contract, other than that which constitutes a set-off, the plaintiff may reply any facts which would have constituted a defense, had the defendant sued the plaintiff' for such cause of action ; and the only serious question that can be made is, whether he may reply a set-oft" to the set-off' stated in the answer. Assuming that he was not by statute, prior to the Code, permitted to do so, still I think that the Code now authorizes it. If the plaintiff", as in this case, brings his action upon a note, and the defendant states a cause of action constituting a set-off', and the plaintiff has another cause of action which would constitute a set-off to the defend- ■ 2 Barb. Ch. Pr. 133, 133. and did not affect tlie authority of Tur- ' Miller v. Losee, 9 How. Pr. 356 ; ner v. Simpson, and Beilly v. Mucker, Eeilly v. Rudcer, 16 Ind. 303 ; Turner upon this point. Stewart v. Trcmis, 10 V. Simpson, 12 id. 413 ; Hull v. Hull, How. 148, did not really decide the 30 How. 51 ; White v. Joy, 13 N. Y. 80, question. Mr. Waterman, in his work was under,the Code of 1849. The case of on set-off (649, 650, 1st ed.), cites only MeAtoy v. Wright, 2o Ind. 22, 29, pro- cases decided under the common-law ceeded upon the theory that the reply system of pleading, was a departure from the complaint. 718 REPLY. ' [CH. VI. [*630] ant's claim, had the defendant *brought an action upon the claim he has set off, I think the plaintiff may reply his other cause of action as a set-off and defense to the defend- ant's set-off; and that, in contemplation of section 153, it will constitute a defense to the new matter in the answer.* In respect to irrelevant and redundant matter in the reply, and when in what cases it will be struck out on motion, the rules are entirely similar to those which govern the answer. In giving proper effect to the word " aggrieved," in the section relative to this subject, it is presumed that, in respect to the reply, [*631] as to matters in avoidance in the answer, *which require no traverse, a more liberal rule will be adopted than in regard to the complaint ; that is to say, should the reply set up matters material in proof to the issue, and which, if proved, will bar the defendant's defense, if these matters be well stated according to the rules of pleading of the Code, they should not be considered irrelevant or redundant, even though not strictly required to be set up by the Code. It will not, in such case, be sufficient for the party who moves to strike out such matters merely to say that he may be aggrieved. He is not .required to controvert them by any other pleading on his part, and he should, at least, be able to satisfy the court how or in what manner he may be aggrieved ; if that fact is not apparent on the face of the papers, it should be made to appear by evidence aliunde. * A somewhat different view is taken in the recent case of Stewart v. Travis et al. (10 How. Pr. 14:8), by Justice Hand, who considers that though the word "defense," in sections 149 and 153, was intended to be used in a popular sense, and thus miglit in- clude a set-off to a'set-off pleaded to the answer, if that ever was admissible, yet, " it does not follow that such a replication is necessary, or even proper, especially where the claims set up in the complaint and plea of set-off are pleaded in a general U'cty, and not confined to some specific instrument or claim." The principle was assimilated to the common-law plea of payment in assumpsit (which has been held to apply to the specific debt which the plaintiff seeks to recover), and the plaintiff replied, by way of new assignment, that he did not sue on the promise met by the plea. In such case, the issue was held to be, whether there had been a second debt, or whether there had been two debts. Hall v. Middleton, 4 A. and B. 107. The question as to allowing a reply of set-off to an answer of set-off, however, does not seem to have been directly adjudged in this case, the decision being put mainly upon the ground that the party had mistaken his remedy in moving to strike out, instead of demurring to, the matter thus pleaded. Be this as it may, I see no good reason for testing the sufficiency of a reply in such cases by the strict rules which governed the framing of a common- law issue. From the consideration stated in the text, it seems to me clear that the reply of the Code is entirely analogous to the equity answer to a cross-bill, and not to a common-law replication. SEC. I.J MATTER OF, HOW PLEADED. 719 The replij must he consistent with complaint. — This rule, it will be perceived, is applicable to the reply alone, and can have no reference to the answer. Under the old system of pleading, it was a settled rule that the replication must not depart from the declaration in any material matter, and the rule affected equally rejoinders and all subsequent pleadings.' A departure in plead- ing was said to be when a party quits or departs from the case or defense which he has first made and has recourse to another f as in assumpsit by an executor on several promises which were all said to have been *made to the testator, to which the de- [*632] fendant pleaded the statute of limitations, and the plain- tiif replied a subsequent promise to himself ; the replica- tion was held to be a departure, and therefore bad.^ A departure in pleading was matter of substance, and to be taken advantage of by general demurrer.'' Under the Code, as under the old practice, the plaintiff is not permitted to quit or depart from the case made by him in his complaint. The reply may allege new matter " not inconsistent with the complaint." It is to be observed, however, that matter which maintains and fortifies the declaration was not a departure ; nor would such matter be " inconsistent," under the Code. Thus, in trespass for an assault at H, if the defendant pleads m.olliter manus irn/posuit, to remove the plaintiff from his close at A, and the plaintiff reply that he had a right of way over that close, it is not a departure.' So in an action of debt on a judgment, the de- fendant pleaded an insolvent discharge, and the plaintiff replied that the judgment was rendered in another State on certain notes a,Tidi promises in writing, made prior to the discharge. This was held to be not inconsistent with the declaration and no departure therefrom ; but, on the contrary, was matter merely explanatory of the declaration and tending to support and fortify it.° In the case not reported,'' commenced under the Code, the action [*633] was upon a promissory note in *the individual name of the president of a bank organized under the general banking law. The complaint did not show that the note was owned by ' 1 Cniit. PI. 634. ' 1 Cow. 316. ' Id. ' Beekman v. CuWer, Jan. Q en. Term, ' 3 Saund. 63. 1851, 8d district. * 20 Johns. 1C8. ' 1 Chit. PI. 737. 720 REPLY. [CH. VI. the bank. The defendant's answer alleged that the plaintiff was not the real party in interest, but that the note was owned by the bank. The plaintiff replied that the bank was organized under the act of 1838 (which authorizes the president to sue in his own name), and that the plaintiff was the president of such bank. The defendant demurred to the reply, on the ground of its being a departure from, and inconsistent with, the complaint. The demurrer was overruled at the circuit, and judgment affirmed on appeal at general term. So in the case of Manning v. Wiibeck, cited on a former page,' the plaintiffs, in an action to recover personal property, alleged generally their ownership of the property, and the defendants, by way of answer, set up tliat the goods were not the firoperty of the plaintiffs, but some time before had been sold by them to one of the defendants ; the plaintiffs, relying upon the fact that the sale had been procured by the fraudulent representations of the defendant, moved to strike out the allegations of the answer ; but the court said that they should, themselves, have brought forward the alleged fraudulent representations in their complaint as the facts establishing their ownership, and not having [*631] done * so they were bound to do it in the form of a reply to the new matter in the answer. Cases like the foregoing, however, it is evident, cannot now occur, there being no reply except to a counter-claim ; and these decisions are of service merely as indicating generally the rules which test the question whether a reply is inconsistent or not. In this class of cases it might, and still may, perhaps, be laid down as a safe rule in framing the pleading, that whatever wOiild have been a departure under the old system in matters of sub- stance, and readied by a general demurrer, may be considered an inconsistent reply under the Code, and therefore defective. Thus, in Brand v. Schenectady da Troy Railroad Go.^' a case under the Code, where the complaint alleged injury to the plaintiff in consequence of being carelessly run against by the engine of defendant, and the answer denied the careless management of the engine, but charged that the injury was occasioned by the plain- tiff's own carelessness, and the reply set up that the injury was ' Ante, page 246, marg.p. » 8 Barb. S. C. 376. SEC. I.] MATTER OF, HOW PLEADED. 721 occasioned by the bad condition of the track of the road, whereby the plaintiff was hindered and delayed in crossing it ; this was said by the court to be a departure in pleading. But as no objection was taken before or at the trial, the objection, it was held, was waived. And so in Brown v. MoOune,^ in the New York superior court, where the action was for the price [*635] of goods sold, and the defense was infancy, *and the reply set up that the defendant falsely and fraudulently, at the time of sale, averred that he was of full age, and thus induced the plaintiffs to sell ; the court, holding such a reply to be unavailable, says : " It is in the complaint, and not in the reply, that we are to look for the cause of action. If the plaintiffs had intended to change their ground of action from a demand upon contract to one for a fraud, they should have amended their complaint. The statement of the fraud, for the first time in the reply, did not avail to make it a good cause of action." A more difficult question arises as to the proper mode of taking the objection to an inconsistent reply. Section 155 of the Code permits, in express terms, a demurrer to a reply, for insufficiency. In the case last cited, it was held that the objection to such a reply was not waived by the defendant's proceeding to trial ^Ipith- out demurring, and evidence of the fraudulent representation as the distinct cause of action set up in the reply was properly rejected. In the case of Beekman v. Cutler, supra," it was held, at the circuit, by the justice who overruled the demurrer, that a demurrer would not lie to a reply which was sufficient in sub- stance, though it might be a departure from the complaint ; the proper course was by motion to strike out as irrelevant. The general term, on affirming this judgment, delivered no [*636] opinion, though, it is presumed, the ground *of the de- cision of the circuit court was concurred in. When, then, is a reply -said to be " insufficient," within the meaning of the Code, so as to be reached by demurrer? In Ba^ v. The Wash- ington Mutual Insurance Go.^ Justice Geidlet notices this point, without, liowever, deciding it. The question, it was said, might arise as to what defects will render a reply insufficient — ' Sandf. 334. « 6 How. Pr. 21. ' Ante, page 633, marg. p. 91 722 EEPLY. [CH. VI. whether insufficient as an answer to the previous pleading in matters of substance, or insufficient as a compliance with the rules of pleading of the Code. The question was not adjudicated in that case, tlie decision being placed on other grounds. But in Fry V. Bennett^ the New York superior court held that the term insufficient related not only to an absolute defect in pleading in matters of substance as a defense or reply to a previous pleading, but also to a violation of the rules of pleading prescribed by the Code, and that, where a pleading violated these rules, it might be demurred to for insufficiency. This decision, corresponding in some respects with the decision of the same court in Fabricotti V. Launitz' it is presumed may be safely adopted as a precedent. A reply which does not serve to maintain and fortify the com- plaint, but is a departure from and inconsistent with it, is insufficient as an answer to the previous pleading within the rule laid down by the Code, and may, therefore, be [*637] *reached by demurrer. I see no reason why such a reply may not also be struck out on motion ; and, per- haps, this would be the preferable course. The general rule of practice is, no doubt, laid down with entire accuracy by Justice Maevin, in Robinson v. Judd^ that if a pleading is not author- ized by the Code, or if the manner of pleading is not authorized, and the Code has provided no speciiic mode of bringing the ques- tion before the court, it may be presented by motion, generally, if not always, upon the ground of irregularity. An inconsistent reply is irregula/r, and, as such, may be set aside on such terms as the court shall prescribe; or, it may be entirely irrelevant, and, as such, liable to be struck out on motion, under section 152. Such a motion is to be decided on the same principles as a de- murer ;' and, if the matter is struck out, the party aggrieved may appeal.^ An inconsistent reply is certainly irrelevant to the matter in controversy, even though it may contain matters which otherwise would avail the plaintiff in making out a cause of action. Reply ma/y he to part of cmswer. — The plaintiff may demur to one or more of several defenses or counter-claims set up in the 1 1 C. R. N. S. 239 ; 5 Sandf. 54. ■• Per Harms, J., 6 How. Pr. 70. '' 3 Sand. 743. ^ Bedell v. Stickles, 4 How. Pr. 433. ' 9 How. Pr. 378. SEC. I.J MATTEK OF, HOW PLEADED. 723 answer, and reply to the residue of the counter-claims. When it is said, however, that a plaintiff may demur to part of a defense and reply to the residue, it must be understood [*638] * to mean only in those cases where two or more separate and distinct defenses are set up in the answer. A demur- rer will not lie to part of an entire defense ; therefore a plaintiff cannot select from the answer certain matters not constituting an entire defense and demur to them, and at the same time reply to the residue.' The meaning of the Code is, that where the defend- ant sets up more than one entire and complete counter-claim in his defense, the plaintiff may reply to one or more of them, and demur to the residue. Where a demurrer and a reply were interposed to different parts of the same entire defense, the court on argument overruled the demurrer.'' It was said in that case, that the more correct practice would have been for the defendant to move to strike out the demurrer. This would have been done, or, as in S locum v. Wheeler^ the plaintiff compelled to elect by which he would abide. Manner of stating new matter in the reply. — The reply to defendant's counter-claim being, as we have seen, entirely in the nature of an answer to an original complaint, the same rules govern the mode and manner of stating facts in a reply which are applicable to the answer. Under the practice in equity, the rep- lication was a mere formal averment of the truth and sufficiency of the bill, and a deniarl of the allegations in the answer. [*639] Formerly, the * practice was, if the defendant offered new matter by way of defense in his answer, the complainant replied specially ; but afterward the use of a special replication was discontinued, and if the plaintiff desired to avoid the effect of the new matter, his proper course was to apply to amend the charging part of his bill." These rules, it will be observed, can have no application to the Code. A formal reply, merel) for the purpose of producing an issue, is done away with entirely. There is no such thing now as a charging part to a complaint ; that is, a part anticipating the defense, and setting forth the alleged pretenses of the defendant. ' Odbh V. m-azee, 4 Ho%v. Pr. 413. ^ 4 jjow. Pr. 373. ' Gobi) V. Frazee, 4 How. Pr. 414. ' 1 Barb. Ch. Pr. 249, 250 724 EEPLT. [CH. VI. His defense must properly appear by the statements of the defend- ant himself. Matters which were in equity the subjects of a cross-bill by the defendant, requiring an answer from the plain- tiff, are now to be set up by way of counter-claim in the same action, and are to be answered by the reply as prescribed in the Code. The general and special replication, as foiinerly used in chancery, in respect to matter in avoidance alleged in the answer, are no longer necessary. If matters in the reply be clearly friv- olous or palpably impertinent as a bar to the defendant's claim, they should be struck out, in analogy with the old practice of striking out frivolous matters in a notice.' If, however, they serve to fortify and sustain the complaint, they shoidd be per- mitted to remain on the record. [*64:0] *A replication, by way of a new assignment of the plaintiff"'s cause of action, in case of an evasive plea, can no longer be necessary." Such new assignment, under the old practice, was in the nature of a new declaration, or rather of a more precise and particular repetition of the declaration.'' The same thing can be accomplished under section 172 of the Code, by amending the complaint as of course within twenty days after service of the answer. SECTION II. VERIFICATION OF THE REPLY. The reply of the plaintiff to the defendant's answer must be verified in the manner prescribed by section 157 of the amended Code, when the plaintiff, by verifying his complaint, has made it necessary for the defendant to put in an answer under oath. And even if the complaint be not sworn to, the defendant, if he choose, may verify his answer, in which case, if the plaintiff put in a reply, it must be verified.' [*641] * A party is privileged from verifying a reply in the same cases in which he is privileged from verifying an answer. 1 1 Hill, 663. ' Levi v. Jakexoays, 4 How. Pr. 136, » Steph. PI. 237, 1 Burr. Pr. 187. Code, § 156. SEC. III.J SHAM, IKEELEVANT AND FRIVOLOUS. 725 And, generally, the rules applicable to the verification of an answer are the same with those applicable to the verification of the reply as to which vide eh. 5, § 5.' SECTION III. SHAM, lERELBVANT AND FRIVOLOUS KBPLT. If a reply be frivolous, the opposite party may, upon a previous notice of five days, apply to a judge of the court, either in or out of the court, for judgment thereon, and judgment may be given accordingly.'' This provision of the Code remains unchanged by the later amendments. It is, of course, to be taken in connection with those amendments, and its effect is, therefore, much restricted. Prior to these amendments, every allegation of new matter in the answer was required to be traversed, or confessed and [*642] avoided, by the reply; and a reply, not generally *or specially controverting a material allegation of new mat- ter in the answer, but setting up some frivolous matter of avoid- ance thereto might, under this section, be overruled on a summary application to a j^idge, either in or out of court, and judgment be rendered for the plaintiff, as for want of a reply. By the amendments, however, as we have seen, new matter in the answer, not constituting a counter-claim, is considered con- troverted for the purposes of the. trial, and an issue is joined thereon which must be tried. However frivolous, then, a reply of new matter may be, the defendant cannot, under this section, move for judgment so long as any material issue of fact remains untried in the cause.' A frivolous reply, within the meaning of this section, to authorize an application for judgment, must be one which admits the allegations in the defendant's answer, and undertakes to avoid them by matters which, upon their face, are clearly and palpably frivolous. If any issue of fact remains to be tried, the frivolous reply, if clearly frivolous and irrelevant, may be struck out on motion ; or if there is a doubt as to its suffi- ' See also verification of the com- ^ Gomstock v. Hallodc, 1 C. R. N. S. plaint, ch. 4, § 4. 300 \GoUins v. &u,au, 7 Rob. 94]. ' Code, § 347. 726 KEPLY. [CH. VJ. 2iei)cy in law to constitute an answer to the defendant's defense, the objection may be taken by demurrer/ Sham and irrelevcmt reply. — Section 152 authorizes "sham and irrelevant answers and defenses " to be struck out on [*643] motion. Is this section confined * in terms to the defend- ant's answer or may it be also extended to the reply ? A reply of new matter to the defendant's counter-claim is in the nature of an answer to such new matter. In other words, it is a defense to what would have been a cause of action if pleaded in an original suit. A counter-claim is nothing more or less than a cause of action between the same parties, whicli the Code permits to be set up as a defense in the same action, and finally deter- mined on the same trial. When the reply alleges new matter, it is a defense to such counter-claim. If such defense be sham or irrelevant, it seems to come not only within the spirit and mean- ing, but within the language and letter of the Code. A sham, that is a false, and an irrelevant, that is a foreign and palpably insufficient reply, may be struck out on motion under section 162. And so, it seems, where a reply is unnecessarily pleaded, as, for example, a reply to new matter not constituting a counter-claim, such reply may be considered as irrelevoAit and will be struck out." In strictness, however, the proper motion to reach such an unauthorized pleading would be to set it aside for irregularity." Judgment cannot be given for the defendant on striking out a sham and irrelevant reply.' ISTor, within the case of [*644] Darrow v. Miller^ can judgment, * on account of the frivolousness of the reply, he given unless the notice of motion specifies that the party will apply for such judgment. If the application is merely to strike out a defense [i. e., an answer or reply) as sham or irrelevant, the motion is analogous, and the order will be similar to that of an application to strike out redundant and irrelevant matter under section 160. The siiam or irrelevant reply will be struck out with costs, or on such terms as the court may impose, and the plain tifi^ be permitted, if a ' 4 How. Pr. 68 ; 4 Sandf. 660 ; 6 » Simpson et al. v. Loft, 8 How. 234 ; How. Pr, 21. Robinson v. Judd, 7 id. 378. 2 Putnam v. Deforest, 8 How. 146 ; * Potter v. Carreras, 4 Rob. 639 , but Willa/ms v. Upton, id. 205. see Joannes v. Day, 3 id, 650. 6 5 How. Pr. 347. SEC. IV. J SUPPLEMENTAL UEPLY. 727 proper case is shown, to make a further reply, leaving the issues joined on the answer of the defendant to be tried. As to the nature of a sham, iiTelevant, and frivolous defense, the distinction existing between such defenses, and the mode of taking an objection to them, respectively, see ante, ch. 5, § 6. SECTION IV. SDPPLBMENTAIi BBPLT. The plaintiff, under section 177, may be allowed, on motion, to make a supplemental reply alleging facts material to the case occurring after his former reply, or of which he was ignorant when his reply was made. This supplemental reply of new matter is also entirely analogous to a supplemental answer [*645] by the defendant to the plaintiff's complaint, and is gov- erned by the same rules. ' A defendant was not allowed to make a supplemental answer contradicting the statements in his first answer, nor to alter essentially and new model the matter of his original answer." This rule is, no doubt, equally applicable to a supplemental reply. It may be added that such sujjplemental reply, like the original reply, must not be inconsist ent with the complaint, but must consist of matter tending to strengthen or fortify the complaint, or comprising a new and separate defense to the defendant's counter-claim, and one which is consistent with the defense already set up. The facts proper to be stated in the supplemental reply must be such as have occurred after tlie former reply was put in, or of which the plaintiff was at that time ignorant. In JBeals v. Cameron, ° the answer alleged the pendency of another suit for the same demand, whereupon the plaintiff discon- tinued the former suit, and replied the discontinuance. This reply was held good. The question is, says the court, whether the reply was in fact true at the time it was made or put in. If, at that time, the first suit was legally discontinued, there was but one suit then depending, and, consequently, the reply was ' See ante, ch. 5, § 7. '3 How. Pr. 414. « 1 Barb. Ch. Pr. 167 728 REPLY. [CH. TI. [*646] substantially true. This agrees with the rule laid * down in Willis T. Ghipp ' relative to the answer, namely, that any facts existing at the. time the defendant answers, and which show that the plaintiif ought not to have a judgment against the defendant, may be inserted in the answer. So, any facts exist- ing at the time the reply is put in, and which show that the defendant's counter-claim has been discharged or extinguished, may be set up in the ordinary reply ; but if such facts arise after a reply, they must then be set up by way of supplemental reply on leave of the court. And the rules generally applicable to the supplemental answer to the plaintiif 's complaint, it is conceived, are applicable to the supplemental reply to the defendant's coun- ter-claim ; as to which, see ante, chap, v, sec. vii. ' 9 How. Pr. 5^. [*64T] * CHAPTER VII. OF THE DEMUREER. A demurrer at law is defined to be a pleading which imports that the objecting party will not proceed with the pleading because no sufficient statement has been made on the other side, but will wait the judgment of the court whether he is bound to answer.' It might be for insufficiency, either in suidance or inform; either on the ground that the case shown by the opposite party was essentially insufficient to maintain the action or defense, or on the ground that it was stated in an inartificial manner. In the former case, the demurrer might be general, and might except to the sufficiency of the pleading in general terms, without showing specifically the nature of the objection. In the latter case, it was required to be special, and to point out the particular ground of the exception.' The use of the demurrer to the bill of complaint in equity was entirely similar. Whenever any ground of defense was apparent upon the bill itself, either from the matter contained in it, [*64:8] or from defect * in its frame, or in the case made by it, a demurrer was proper.^ It was an allegation, which, admitting the matters of fact stated in the bill to be true, insisted that they were insufficient for the complainant to proceed upon, or to oblige the defendant to answer; or that, for some reasons apparent on the face of the bill, or because of the omission of some matter which ought to be contained in it, or for want of some circumstance which ought to be attendant thereon, the defendant ought not to be compelled to answer.'' A demurrer, as applied to the present practice, is defined in gen- eral terms, and the cases in which it may be used specified by the Code. It is the object of the present chapter to consider the nature of the demurrer, how and when it may be pleaded, and generally the changes in respect to it which have been efifected by the Code. The subject will be considered in the following order : 1. Nature and use of tlie demurrer. 3. What matter in a complaint may be demurred to. 3. Wliat matter in an answer or reply. 4. Grounds of demurrer, bow to be stated. 5. Objection, wben it may be reached by answer, when taken on motion or by demurrer, and when deemed to be waived. 6. Frivolous demurrer and practice thereon. ' 1 Steph. PI. 43. * Mitf. Eq. PI. 107; 1 Barb. Ch. Pr = Id. 140. 106. 8 Mitf. Eq. PI. 107. 92 730 DEMURBEJt. [on. VII [*649J * SECTION I. NATOKB AND USE OF THE DEMURRBB. A demurrer, both under the practice at law and in equity, admitted the facts pleaded for the purpose of the argument, and merely referred the question of their legal sufficiency to the decision of the court/ The rule is not changed by any provision of the Code.^ A demurrer which does not admit the facts is insufficient, and will be disregarded for all purposes." [The courts of this State entertain jurisdiction of actions for injuries com- mitted abroad, when one or both of the parties are citizens of the United States. So they have jurisdiction, in actions for such injiu-ies, between non-resident foreigners, but as matter of discretion will only exercise it in exceptional cases. On demxirrer, the pro- priety of retaining jurisdiction must be determined upon the pleadings. If there are any special reasons for retaining jurisdic- tion, they would not and could not properly appear. On a motion to dismiss the complaint, such reasons, if any, can be shown by the opposing affidavits, and the court will, in its discretion, deter- mine whether it will retain jurisdiction.*] Under the old practice, there was a great variety of causes for which a demurrer would lie, not only matters of substance, but the merest matters of expression and form. Thus, if a plaintiif omitted to allege a day, or a place, in his declaration, it was demurrable ; so, if, in an action of trespass he omitted the formal words " against the peace," and " by force and arms," the defend- ant might demur. The Code makes no provision for a demurrer in any of these cases, or, indeed, in any case whatever, where, under the old system, the matter objected to would have been defective in form, or by reason of an inartificial manner of state- ment. An omission to allege a day or a place, for exam- [*650] pie, cannot be demurred to ; * but if, for the want of any siich allegation, the pleading is not reasonably deiinite or certain, the party aggrieved may obtain a remedy on motion under the latter clause of section 160 of the Code. ' Chit. PI. 661. ■» DeWitt v. Buchanan, 10 Abb. N. S ' Hall T. Bartlctt, 9 Barb. S. C. 397. Ill, 54 Barb. 31. 3 aiark V. Van Buzen, 3 C. R. 219. SEC. I.] NATURE ANJJ USE Oh\ 731 A deimirrer at law, when for matters of substance, might be general, though if there were any doubts as to whether the defect was one of substance or merely of form, a special demurrer was the better course, inasmuch as it raised at once the questions as to the particular defects pointed out, and generally as to the sufiS- ciency of the declaration. A demurrer to a bill in equity was generally required to express the grounds upon which it was founded." This is the practice retained by the Code." A defendant was not limited to one cause of demurrer only, either to a jDleading at law or a bill in equity. He might assign as many causes of demurrer as he pleased, and if any one of the causes assigned was held good, the demurrer would be allowed.' This rule is also unchanged ; a defendant may demur for any one or more of the causes specified by the Code. In equity, a demurrer might be to the whole bill, or to a part only of the bill. The defendant might demur to a part, plead to another part, and answer as to the residue ; though such defenses were each required to be to different and distinct parts of the [*651] * bill, and to be consistent with each other." At law a demurrer was allowed to one of several diiferent counts in the declaration and an answer to the residue. This rule is preserved by the Code ; but the demurrer in such ease must be to an entire cause of action or defense. In Manchester et al. v. Storrs et al.,^ Mr. Justice Geidlet held, at special term, that not only was a demurrer unauthorized by the Code to part of the allegations in the complaint, all of which, connected together, form a statement constituting one entire cause of action, but that a defendant could not even demur to one of two or more distinct causes of action set uj) in the com- plaint, and answer the residae. " "We must forget," he says, " all old rules respecting demurrers, and regard a demurrer now as a pleading created, with its character and office defined by the Code." He held, in that case, that while at laio a demurrer was allowed to one of several different counts, and while in equity you might demur to a part and answer the residue of the bill, that the Code did not authorize a demurrer, except to the entire complaint. ' It miglit be general or special. ^ Story's Eq. PI., g 443. (Story's Eq. PL, § 455.) ^ Story's Eq. PI., § 443. » Post, § 4 of this chapter. ^ 3 How. Pr. 410. 732 L'JfiMURREE. [CH. VII. This decision was made before the amendment of 1849 to the Code, specified in section 149. A demurrer may now be taken " to the whole complaint, or to any of the alleged causes of action stated therein." This language, however, does not, it is [*652] conceived, change the rule laid down in the case last *cited, that the demurrer must be to an entire cause of action or defense, and cannot be to part of the allegations which constitute such cause of action or defense. This construction is apparent from section 151 as amended, and has also been so repeatedly adjudicated.' But, under the Code, it has been held that a demurrer must not be too broad ; as where a complaint has a double aspect, one being an ordinary creditor's bill, and the other to set aside an assignment made by defendant, a demurrer to the whole complaint that it does not show the return of an execution unsatisfied, is bad, and will be overruled, because such an objec- tion could not be taken to the complaint in its second aspect." And so also if there be more than one cause of action, and the demurrer be to the whole complaint, if one of the causes of action be good, the demurrer will be overruled, and wih not be held to reach the defective count or cause of action.' It was a rule in pleading that on a demurrer the court will consider the whole record, and give judgment for the party, who, on the whole, appears to be entitled to it. Thus, when the plain- tiff demurred to defendant's plea, if his declaration was bad, judgment would be rendered for the defendant." So, if the demurrer was to the reply, and there was a substantial [*653] fault in the plea, judgment would be rendered for *the plaintiff; though if the declaration was also bad in stcb- stanoe, the defendant was entitled to judgment. If the declara- tion, however, contained two counts, one of which was bad and the other good, the good count would support the declaration ; and the plaintiff, on demurrer to a defective plea, would be entitled to judgment." But in looking back of the pleading demurred to, the court would not regard matters of form." Thus, on a demurrer • 4 How. Pr. 413 ; 5 id. 5 ; 3 Sandf. Newman v. Board of SupenHsors, 1 704 ; 1 Code R. N. S. 335. Lans. 476 ; Van Alstyne v. Freday, 41 '^ booper V. Glason, N.Y. special term, N. Y. 174 ; Pardo v. Osgood, 2 Abb. K per Edmonds, J., 1 Code R. N. S. 347. S. 365 ; Allen v. Malcolm, 13 id. 3-35 ' Butler V. Wood, 10 How. Pr. 333. ' 8 Wend. 129 ; 10 Pet. 357. « Awrora City v. West, 7 Wall. 93 ; « Aurora City v. West, 7 Wall. S3, SEO. I.J WATTJEE AND USE OE. 7^3 to a plea defective in substance, the court would not render judg- ment against tlie plaintiif for the reason that his declaration was technically insufficient, and might have been specially demurred to. Justice Sandfoed, in the case of Schwah v. Furniss, in the !N. Y. superior court,' remarks, in regard to the question whether on a demurrer either party may go back and attack a previous pleading : " I have come to the conclusion that the practice in this respect remains as it existed in actions at common law prior to the Code, and that the antecedent pleading may be attacked. For example, on a demurrer to an answer, the defendant may attack the complaint for defects in matters of substance, but not on objections which go only to the form of the pleading. The defect must be such as could be reached by a general demurrer." In this case, as elsewhere reported," and decided with the con- currence of all the judges of the superior court, it is [*654] further observed : " There is no more * reason now than formerly that a plaintiff should have judgment on demur- ring to an answer when it appears upon the face of the record that he has no cause of action ; or that the defendant should suc- ceed on a demurrer to the reply, when it is apparent upon his answer that he has no defense." A similar doctrine was held in the same court at general term, in the case of Fry v. Bennett,' namely, that on the argument of a demurrer to an answer the defendant may attack the complaint, but the grounds of the attack, to render it successful, must be such as would have entitled the defendant to judgment had he elected to demur instead of answering. It is said also that, on such a demurrer, the complaint may be attacked only when it appears on its face that the plain- tiff has no cause of action, or that the court has no jurisdiction ; defect of parties, misjoinder of actions, etc., are not such objec- tions as can be reached in this manner.* The same thing was said by Justice Hakbis, The People v. Banher," and by Justice JoHTsrsoN, in Stoddart v. Onondaga Annual Conference.' The defect in the complaint which can be reached on a demurrer to an 94 ; Tvbhs v. Oamell, 8 Wend. 129 ; M Code R. N. S. 256. Railroad Company v. Harris, 12 Wall. ■• See note to case of Schwab v. Par- 65. niss, 1 Code R. N. S. 342. ' 1 Code R. N. S. 342. » 8 How. Pr. 258. 2 4 Sandf . 704. « 12 Barb. S. C. 574. 734 DEMURRER. [OH. VII. answer must be a defect m substance, either a jurisdictional defect, or a failure to set forth a sufficient cause of action. Every other defect or objection, by section 148 of the Code, is waived, if not pointed out in the answer ; but these defects in substance [*6551 are not * cured by a neglect to bring them up in the first instance by answer or demurrer ; and they may be noticed at any time when the question is raised by the opposite party, even after judgment, on appeal.' Under the former practice there could not be a demurrer and a plea to the same part of the declaration." And if a plea con- tained several distinct matters, divisible in their nature, as separ- ate and distinct demands, the plaintiff could not demur generally to the vsrhole because a part was bad ; he should demur as to each of the separate defenses badly pleaded, and answer the residue.' And when it is said that in equity a defendant may demur, plead and answer to the same bill, it is not meant that he iiay demur and answer at the same time to the whole, or to the same part of a bill,' but he might demur to one part and answer the residue. If the demurrer was not to the whole bill, it must clearly express the particular part it was intended to cover, and if any part of the matter covered by it was also covered by a plea or answer, the whole demurrer would be overruled. These rules, that a demurrer and an answer cannot be both sustained at the same time to the same cause of action or defense, are now well settled to be applicable to an action under the Code. Although it was intimated in one or two of the earlier [*656] * cases ^ that a defendant might demur and answer to the same cause of action, yet, subsequent cases have settled the rule to the contrary. ° Where two defendants, having separate interests, sever in their defenses, one may answer and another demur to the same cause of action. Each defendant in such case may raise a separate issue on the plaintiff's complaint, and is entitled to interpose any defense he may think proper. An answer of one of several ' Bayner v. Clark, 7 Barb. S. C. 581. ^ Slocum v. Wheeler, 4 How. Vr. 373 ; •^ 5 Wend. 104. Cobb v. Prazee, id. 413 ; Spelman v. '' 11 Johns. 16. Weider, 5 id. 5 ; Tngralmm v. Baldtmi, ■> 6 Jolms. 4 Johns. 292. ' Mariposa Go. v. Garrison, 36 How. " 1 Hill, 130. 448 " 3 id. 159 [3 N. Y. 193 ; 4 id. 274 ; 36 ' Graham on Juris'diction. Barb. 343 ; 15 Abb. 78.] » 17 Wend. 333. 740 DBMTJREER. [CH. VII. In a superior court, however, jurisdiction will be presumed, and a demurrer will not lie for the reason that jurisdiction is not; affirmatively shown. If the want of jurisdiction does not appear, the objection, if any such exist, may be raised by answer,' or if not thus raised the judgment will be set aside at any subsequent stage, whenever such want of jurisdiction shall appear." But, under the Code, as has been observed on a former page,' it is not necessary now, in pleading the judgment of an inferior court of limited or special jurisdiction, to set forth the facts conferring jurisdiction, and a demurrer, therefore, will not lie now, as it formerly would, for that cause; a general averment of jurisdiction is sufficient. L*664] * Jurisdiction as to the person of defendant.'' — If a want of jurisdiction appear also in this respect the defend- ant may demur. We have briefly noticed above some of the cases in which our State courts have, and have not, jurisdiction of the subject-matter of an action, and have seen generally that they have jurisdiction in all cases, whether legal or equitable, where the person of the defendant is within the jurisdiction of the court, no matter where the cause of action arose, except in that class of cases at law heretofore denominated local, as tres- pass to land, ejectment, etc., etc.,' in which cases the subject-matter of the relief claimed, or of the injury complained of, must be within the territorial jurisdiction of the court. There is also a certain class of cases in which the court exer- cises jurisdiction over the right of parties who are not within the jurisdiction of the court and personally amenable to process, but who are either necessaiy or proper parties defendants to an action. Thus, where a defendant is a proper party to an action relating to real property in this State, or the subject of the action is real or personal property in this State, and the defendant lias or claims a lien or any interest therein, or the relief demanded [*665] """consists in excluding the defendant from any interest or ' Code, § 147. be exempted from -jurisdiction of State 'Code, t; 144; 1 Hill, 130. tribunal, 6 WVnd! 333, 10 id. 50, 7 2 Ante, pages 270, 271, mavg. ■p. Pet. U. S. 37(i, 8 id. 334, 5 Barb. S. C. * As to privilege from aiTest of tlie . 115. person, and in what cases the court does * And so, also, for partition and other not acquire jurisdiction, see Graham's actions and claims relative to real estate Pr. 123-144. And sue, as to privilege and the title thereof, of foreign consul, ambassador, etc., to SEC. II. J TO THE COMPLAINT; 741 lien therein ; or where the defendant, thongh a non-resident of the State, has property therein, and the cause of action arises on contract; or the defendant is a foreign corporation, and has property in this State, or the cause of action arose therein, in tliesc various cases the court will exercise jurisdiction over the absentee or non-resident defendant, in respect to such property or cause of action ; and the Code particularly prescribes the manner of the service of process upon such defendants.' This is similar to the former manner of serving process upon absent defendants in suits in equity, and the rule is now made xmiform and extended to all cases. At common law, before a judgment could be pronounced against the person, the defendant must be in coxirt, either upon its process or by voluntary submission to its jurisdiction. If not so in court, he might plead to the jurisdic- tion of the person if he had notice of the suit and chose to appear. Service of process out of the territorial jurisdiction of the court was at common law a nullity, and mere personal service of process on a defendant out of the State is void as the basis of any judicial proceeding, and confers no jurisdiction over the defendant.' Even the personal service of a summons upon the president of a foreign corporation, who happens to be [*666] temporarily in this State, and does not voluntai-ily *appear, it has been held, gives no jurisdiction of the defendant (the corporation) for the purpose of rendering a personal judg- ment upon contracts made in this State, or for debts due to resi- dents of this State. So held by Justice Sill, at special term, in Ihtlbert v. The Hope Mtdual Insurance Convpcmy^ and affirmed at general term on appeal.* The only method of acquiring juris- diction in such cases is that prescribed by the Code, by order of publication, etc., pursuant to section 135. Thus, in the case last cited, if the defendant (a foreign corporation) had property in this State, or if the cause of action had arisen therein, the plain- tiff might have obtained an order of publication, and having published it for the recpiisite length of time, and served copy summons and complaint by mail (or made personal service out of ' Code, § 135. " Id. 415 \Bates v. Nm Orleans, eta., ' Litchfield v. Bomell, 5 How. Pr. 4 Abb. 73, affirmed, 30 Barb. 159, 20 846. How. 62]. 3 4 How. Pr. 375. 742 DEMURBEE. [CH. VII. the State in lieu of publication and deposit in post-ofRce), the court would have acquired jurisdiction to render the judgment. The court will also exercise jurisdiction over an absentee defendant, in an action for divorce, in the same manner, and in the cases prescribed by law.' The cases in which the court has jurisdiction by statute to grant a divorce for adultery, are : 1st. Where both liusband and wife were inhabitants of this State at the time of the commission of the ofi'ense ; 2d. Where the marriage was solemnized [*667] * or took place within this State, and the injured party, at the time of the commission of the offense, and at the time of exhibiting the bill of complaint, is an actual inhabitant of this State ; 3d. Where the offense was committed in this State, and the injured party, at the time of exhibiting the bill of complaint, is an actual inhabitant of this State.'' Under the former practice in chancery, which required the bill to show jurisdiction, it was necessary for the complainant to state facts in the bill sufficient to bring the case within one of the above heads. ^ This does not seem to be necessary under the uniform rule of pleading adopted by the Code. Unless an absolute want of jurisdiction appears on the face of the complaint a demurrer will not lie, jurisdiction being presumed in a superior court till the contrary appears.* So, too, by a former rule in the chancery practice,' the bill must positively aver that the adultery was committed without conniv- ance, that more than five years have elapsed since discovery, and plaintiff has not voluntarily cohabited, since discovery, with de- fendant ; or, if defendant is living in open adultery with another person, that five years have not elapsed since the commencement of such adulterous intercourse." None of these matters, under the new rules of the supreme court, need now be alleged [*668] in the complaint, but the plaintiff may (and, * unless stated in the complaint, and verified as prescribed by the Code, must) supply the omission by his affidavit, in order to show him- self entitled to judgment, pursuant to the statute.' ' Code, § 135, 5tli subdivision. ' Rule 163. ' 2 R. S. 144, § 88, 2 Edm. St. 150. « 2 R. S. 147, § 55. 2 9 Paige, 550. ' Sup. Court Rule, 1870, No. 87. * 1 HiU, 130. SEC. II. J TO THE COMPLAINT. 743 2. The 'plaintiff has not legal capacity to sue. — This is the second ground of demurrer to the complaint specified in the Code. Objections to the person of the plaintiflf" that he has not legal capacity to sue, as : 1st. That the plaintiff is not entitled to sue, by reason of some personal disability ; or, 2d. That the plaintiff has no title to the character in which he sues, were also, at com- mon la^7, usiially raised by plea in abatement. In equity they were the proper subjects of a demurrer, if apparent on the face of the complaint, and so also by the Code. Thus, under the first class, if it appear by the complaint that the plaintiff is an infant, or married woman, or idiot, or lunatic, and is thus incapable of instituting a suit alone, and no next friend or committee is named in the complaint, the defendant, in analogy with the former equity practice, may demur.' If it does not appear on the complaint, the objection (formerly taken by plea) may be raised by answer. If not so taken the objection in all subsequent proceedings is held to be waived.' And so in cases where a trustee, to whom the demand has passed, or the [*669] assignee of a chose in action, * is required to sue in his own name for the collection of such demand. If that fact should appear on the face of the complaint, and the acting be in the name of the assignor, insolvent debtor, or other person not having legal capacity to enforce the collection of the demand, the defendant may demur. And so, too, under the second above class, namely, that the plaintiff has 'no title to the character in which he sues, the defendant may demur. As if, for example, it appear upon the face of the complaipt that the plaintiff sues as administrator under void letters of administration, or in virtue of a grant of administration in a foreign country, the objection may be taken by demurrer, for the reason that the plaintiff has no right or legal capacity, under such letters, to sue in our courts ; ' [but in a suit by a corporation, its incorporation need not be avei-red.*] Another action pending between the sarne parties for the same 1 story's Eq, PI., g 494 ; Hastings v. ' Mitf. Eq. PI. 155 ; Cooper's Eq. PI. McKinUy, 1 Smith's Com. PI. 273 [af- 169, 170. firmed, Seld. notes, Oct., 1853, p. 19]. * Phmnix Bank v. Donnell, 40 N. Y. 2 Code, ii 148 ; Hastings v. McKinley, 411. 1 Smith's Com. PI. 373. 744 DEMtTKREK. LCH. VII. cause. — Tliis also is a ground for demurrer by tbe Code, if the defect appears upon the face of the complaint ; otherwise, objec- tion must be taken by answer, or will be deemed to be waived. The objection can be taken in no other way. Accordingly, in an action for partition, a motion by plaintiff to set aside the proceed- ings in an action for partition commenced by the defendant, on the ground that an action for the partition of the same premises had been previously commenced by the plaintiff, was denied ; it being held that the plaintiff' 's remedy was to set forth, in [*670] answer to the suit *last commenced, the fact of the pendency of the first suit.' This ground of objection will not ordinarily appear upon the face of the complaint ; and the defendant will, therefore, usually be obliged to set it up in his answer. And though the second action thus jjleaded must in general be between the same parties and for the same cause of action, yet it is said that there are exceptions to the rule, as where separate actions for the same single act of trespass are brought against several defendants, the one last served may avail himself of the pendency of the action against the first ; and so a recovery against one of several parties to a joint tort frequently precludes the plaintiff from proceeding against any other party not included in the action.'' In an action on a promissory note, a demurrer, or answer, of a pendencj' of a suit for the same cause of action in another State, is bad." The same rule was adhered to in the New York superior court, in Cooh V. ZiiGhfield.* The provisions of the Code, it was said, have not altered the rule of law that the pendency of a suit in a court of the United States, or of another State, is no defense. And this decision has been aflirmed by the court of appeals.' [*671] *4. That there is a defeat of parties, plaintiff or defendant. — This is the fourth ground of demurrer to the plaintiff's complaint provided by the Code. The objection, in this case, must be taken by demurrer, if it appear on the face ' Uornfager v. Hornfager, 6 How. ' Bvrroios v. Miller, 5 How. Pr. 51, Pr. 379, per Pabkbr, J. per Edmonds, J. 2 See Monell's Pr. 137 and 138, and ^ 5 Sandf. 330. cases cited ; but see contra, Barrett v. ' Court of Appeals, Dec. 31, 18.53. TIdrd Ave., etc., 45N.Y. 628; Brin.imead [See ante, 389, mar g. p., note, tor ex- 7. Harrison, 3 Eug. Eep. 388, 390, note, caption to tMs rule.] SEC. II.J TO THE COMPLAINT. 745 of the complaint, otherwise by answer ; and if not taken either way, it will be deemed waived, and the defendant will not after- ward be permitted to raise it.' [The defect of parties provided for in section 144 of the Code, is a deficiency of, and not too many parties ; the joinder of too many parties, as defendants, when there is no misjoinder of subjects, is no ground for demur- rer by any one defendant against whom the complaint contains a good cause of action.' If the complaint does not state a good cause of action in favor of one of the plaintiffs the defendant may demur,' but in such case he must specify the plaintiff to whom he objects.*] I have already considered at length the question of the misjoinder and nonjoinder of parties in an action under the Code, and who are proper and necessary parties to a complaint. It will not be nec- essary, therefore, to review this branch of the subject here. It may be said, generally, that the want of necessary parties, that is, such as must join or be joined, plaintiffs or defendants, is always to be taken advantage of by demurrer or answer. The same rule is applicable to the misjoinder of parties ; as if a person having no interest in the subject of the action is united as plaintiff, or a person against whom no decree can be made is joined as defend- ant. If the misjoinder is of parties as plaintiffs, according to the equity rule all the defendants may demur. But if the misjoinder is of parties as defendants, those only, according to the same rule, can demur who are improperly joined, or against whom the com- plaint states no cause of action.' This rule was fully recognized in our own courts of [*6Y2] equity before the Code ; ' and it is considered * by Justice Haekis, in Brownson and Wife v. Oifford,'' to be still a rule of pleading under the new system. If a demurrer is put in for want of necessary parties, it should point out who are the proper parties to the action," that is, if from ' Baggott v. Boulger, 3 Duer, 160. ^ Richtmyer v. Biclitmyer, 50 Barb. {Depuy V. Strong, 37 N. T. 373, 4 Abb. 55 ; Scott v. Guernsey, 60 id. 164. N. S. 340, 8 Keyes, 603; Patchin v. Peck, * Richtmyer v. Richtmyer, 50 Barb. 55 38 N. Y. 39 ; Marvin v. Inglis, 39 How. ' Richtmyer v. Richtmyer, 50 Barb. 339 ; Tell v. Beyer, 38 N. Y. 161 ; see 55, Story's Eq. P). , § 544. ' post, 680, marg p.] « 5 Paige, 254, 3 Barb. Ch. 106, id. 618. '' Richtmyer v. Richtmyer, 50 Barb. ' 8 How Pr. 389 ; see also Pinckney 55 ; Warmer v. Farmer, 1 House Lords' v. Wallace, 1 Abb. Pr. 83. Cases, 734. ■ « Story's Eq. PI., § 543, and see post, 94 746 DEMURRER. [CH. VII. the matter in the complaint it appears who should be joined. This is in analogy with one or two decisions under the Code in respect to what matters must be alleged in the ansv/er in such cases.' It is also in analogy with the practice at law, where a plea in abatement was proper for defect in parties. The plea was required to give the plaintiif a better writ, and to point out who the parties were who ought to be joined. But if, from the com- plaint, it does not appear who are the proper parties the rule cannot apply. Thus, a declaration commencing A, B and Co., is bad on demurrer, for it appears that there are some other persons who ought to be joined as plaintiffs ; ^ but the demurrer is not required to specify who those persons are. In equity, as we have seen, if the parties not brought before the court are necessary and proper parties, the exception, if not taken in the answer or by demurrer, might be raised at the hear- ing. And it seems a similar practice is recognized in some eases by the Code ; for although by section 148, if the objection [*673] is not taken by answer or demurrer, * " the defendant shall te deemed to home waived the same" yet, by section 122 (which it is said is the controlling section in determining whether a demurrer for defect of parties is well taken), ^ when a complete determination of the controversy cannot be had without the presence of other parties, the court m/ast cause them to he brought in. If these sections are taken together, they may, per- haps, be construed to mean, that the defendant, at the hearing, is estopped from setting up a defect of even necessary parties to defeat the plaintiff's claim for relief, but if such objection is raised, the plaintiff will be at liberty to amend his bill by adding parties, if necessary, to a complete determination of the contro- versy, the cause, i n the mean time, standing over for that purpose. Where the parties who are omitted are mere forma] parties, the objection, if intended to be taken at all, should be by demurrer or answer, for, at the hearing, the court, if it can properly do so, will dispose of the cause upon its merits, without requiring such formal parties to be joined." And such is the rule indicated by the Code.' 8 4 of this chapter ; , BicMmyer v. ' Wallaco v. Eaton, 5 How. Pr. 99. Bichtmyer, 50 Barb. 55. ^ Story's Eq. PI., § 542, 39 N. Y. 2S7, > See ante, pages 478, 499, marg p. 4 Abb. N. S. 340, « Bentley v. Smith, 3 Gaines, 170. * Am. Code; § 133. SEC. II. J TO THE COMPLAINT. 747 The Code provides that when the question is one of a common or general interest of many persons, or when the parties are very numerous, and it may be impracticable to bring them all before the court, one or more may sue or defend for the benefit f*674] of the * whole.' In snch cases, therefore, a demurrer for defect of parties will be improper. The rule is illustrated in a variety of cases under the old prac- tice in equity. Thus, where the parties aggrieved were a tribe of Indians, one could file a bill in his own name in behalf of all.'' One creditor, as legatee, might sue in behalf of himself and all others standing in the same situation, and the others might come in under the decree." So, where parties form a voluntary associa- tion for private or public purposes, and those who sue or defend are fairly presumed to represent the rights and interests of the whole, the court would allow a bill to be brought by some of the parties on behalf of themselves and all others, though, if brought by the plaintiff alone, a demurrer would lie for defect of parties.' One or more of the several parties, comprising a large number, may file a bill on behalf of himself and his copartners to rescind a contract, if it appear that it is for the benefit of all the partners that the contract should be rescinded.' And where the share- holders of an association are numerous, and the property and management of the affairs of the association are vested in trustees, it was held that a bill for an account and final settlement was properly filed by one of the shareholders in behalf of himself and the others." And so also a bill against the directors of a [*675] mining association * to prevent the money of the com- pany from being appropriated to the use of any persons other than the general benefit of the shareholders.' In Srrdth v. Lookwood, it was held, under the Code, at special term,' that where the party suing for an injunction to restrain the manufacture of an article has merely an interest in common with all others in the State who are engaged in the manufacture of the same article, that such party cannot bring a suit in his own name and for his own benefit alone, but must sue in behalf of all others ' Code, § 119. « 3 Barb. Ch., 8 363. » 11 Paige, 607. ' 3 Mylne & Craig, 49, 4 Russ. 563, » 3 Johns. Ch. 383, 3 id. 553. and see ante, pp. 133, 134, 136. * Story's Eq. PI., § 107. « Per Edwaeds, J., 1 Code R. N. S. » Id., 8 114. 319. 748 DEMUKRER. [CH. VII. having a couuuon interest with him. Perhaps this is ,carrying the I'lile further than necessary. One of several persons, how- ever numerous, having a common interest in obtaining an injunc- tion to restrain a nuisance, may prosecute such action without joining tlie others ; though he may join the others, and if he do so tlie defendant cannot object. The like doctrine applies to cases where there are many persons defendants belonging to a voluntary association or other C(jmpany, or sets of parties, against whom suit is brought. But it has been held, since the Code, that a demurrer will lie to a complaint in an action, brought by a member of an incorporated company for the benefit of the association, on a note given to or held by the association, without showing by the complaint the nature [*676J of the common interest of tlie parties, or that if they *were all before the court their interest is such as would entitle them to maintain the action in their own rights or in their own names. It is not suihcient to allege that the other parties are so numerous that it would be impracticable to bring them all before the court.' In the recent case of Bouton v. The City of BrooTdynj' at a general term in the second district, the question is fully examined by Justice Beown as to what cases and for what reasons the courts permit a plaintiif to commence an action in his own behalf as well as in behalf of all other persons interested in the same question, and the rule indicated in this class of cases as to when a demurrer would or would not lie for defect of parties. The case has already been cited, and the subject generally dis- cussed in a previous part of this work, to which the reader is referred.' When a defendant is out of the jurisdiction of the court and cannot be reached by process of the court (or service made pur- suant to the cases mentioned in section 135 of the Code), such fact stated in the complaint, and proved (if denied), constitutes of itself a sufficient ground for dispensing with such person being made a party, and the coiirt will render judgment without him. Thus, in an action against a partnership, all the partners ' HahicM v. Pemberton, 4 Sandf . 657. ally in cases of numerous parties to ^ 15 Barb. 373. suits, plaintiffs or defendants, Story's 8 Ante, chap. 11, §§ 2 and 3, pages Eq. PI., §§ 107 to 136. 136, marg. p. and seq. See also, gener- SEO. II.] TO THE COMPLAINT. 749 [*6Y7] must be made parties. But * if one of the partners be resident in a foreign country, and cannot be brought before the conrt, and the fact is so charged in the complaint, the court will proceed to judgment against the partners who are within the jurisdiction, provided it can be done without manifest injustice to the absent partner.' If, however, such partner has property in the State, and the action arises on contract, or if in any other way, pursuant to section 135, an order of publication can be obtained against him, he should be made a party and served with process by publication, etc. And if a complaint against one partner, or joint contractor, show a cause of action against a tirm, and do not show the other partners out of the jurisdiction, and not amenable to the process of the court, it may be demurred to for want of partiea. 5. That several causes of action home been improperly united. — Whenever the claims or causes of action mentioned in the com- plaint are so diiferent in their character as to violate, in this respect, the general rules prescribed by the Code, the objection may be taken by demurrer, and, it has l)een held, must be so taken, and can be raised in no other way.^ These general rules have been considered, and the provisions of the Code in res]3ect thereto have been cited, in the third chapter of this work, to which the reader is referred, entitled Joinder of Actions., and but one or two addi- tional remarks will be necessary in this place.' [If two causes of action are improperly joined in the complaint, and the defendant fail to demur, he cannot take advantage thereof on the trial even by a motion to compel the plaintiff to elect upon which he will go.' So as to a count in fraud and one in warranty.' Trespass upon lands, and in the taking of personal property, may be joined.^ A complaint in an award states but one cause of action, although it state at length the facts out of which the sub- mission aa'ose.''] [*678] * The defect in the pleadings now under consideration is similar in its character to that which, under the old practice, was called viuUifariousness. > Cooper's Bq. PI. 35 ; 3 Crancli, 220. - Blossom v. Barrett, 87 N. T. 434, 436 ' Stannard v. Mattiee, 7 How. Pr. 4, ^ Quintard v. Newton, 5 Rob. 72. .\m. Code, § 147. " Golton v. Jones, 7 Rob. 164. 3 Ante, 196, 344, marg. pp. ' Denlutm v. Stilmll, 8 Rob. 653. 750 DEMUREEE. [CH. Til. It is of two kinds: 1st. A misjoinder of causes of suit; that is, when the claims set up in the complaint are of so different a char- acter that the court will not permit them to be litigated in one action. 2d. Where a party is brought in as defendant upon a record, with a large portion of which, and of the case made by which, he has no connection.' Such an objection is different from that arising from a mere misjoinder of claims, and is nearer like the defect of misjoinder of parties. The first of these, that is, the misjoinder of claims or causes of action between the same parties, is specifically provided for in the seven several subdivisions of section 167 of the Code as amended." And here the remark made in Manchester v. Storrs,^ in respect to a demurrer for the misjoinder of several causes of action, may be repeated, that " we must forget all rules respecting demurrers, and regard a demurrer now as a pleading created, with its char- acter and office defined by the Code. No demurrer will lie except to a complaint* nor for any other causes except the six groimds spe*cified in section 122 (now 144)." It may be added that a demurrer .for misjoinder of causes of action, which can be classed under any of the subdivisions of section 167, will not lie [*679] * in any case other than those violating such section. It is not, however, to be supposed that actions which do not come under either of these subdivisions can now be joined with such as do, as, for example, an action for divorce with an action on a promissory note. Justice Wii.laed, in the case of Durlcee V. Saratoga and Washington H. R. Co.^ very properly remarks that the commissioners probably had their eye upon actions at law when they framed the 167th section of the Code. There are remedies well known to our jurisprudence which still exist and which cannot be comprised in either of the subdivisions of section 167. All, therefore, which is settled by that section is, that in the cases therein specified, several caiises of action may be united in the same complaint, if the rules prescribed for that purpose in that section be observed. In cases of different causes of action between the same parties, ■ Story's Eq. PI., § 530 ; Brady v. ^ This was before the Code was McGosker, 1 Comst, 314. amended. •^ See ante, p. 183, 344 marg. p. <■ 4 How. Pr. 328, 2 Code R. 145. » 3 How. Pr. 410. SEC. II. J TO THE COMPLAINT. 751 other than those referable to one of these subdivisions, it is pre- sumed the rule as to a demurrer for the misjoinder is similar to tliat under the former equity practice. The rule in equity was, that if the claims were of a similar nature, involving similar principles and results, and might without inconvenience be heard and adjudged together, they might be joined in the same bill.' Such is doubtless still the practice, and a demurrer will only be well taken for misjoinder to a complaint uniting [*680] * dissimilar or incompatible causes of action ; as if a party should seek in the same action to set aside a deed and to foreclose a mortgage ; or to correct a mistake in a writing and to obtain an injunction on a claim founded in a diiferent transaction ; or to set aside a will and for partition.'' A bill, how- ever, was sustained against a corporation to establish diiferent trusts, created by dift'erent instruments and different donors, at different times, for charitable purposes, no other corporation or person being interested.' Where, however, a bill sets up one sufficient ground of relief, and another distinct, untenable claim, it has been held not to be multifarious.* In such a case, under the Code, the latter part of the complaint may be struck out ou motion. A mere misjoinder of different causes of action is not. strictly speaking, multifariousness,' but such is the general acceptation of the term ; ° and it is well settled that a demurrer will lie for such defect. Thus, a bill against an executor for a legacy and for the individual debt of the testator is multifarious.' So a bill by a judgment creditor for an account against the deceased creditor's estate, and to reach lands in the hands of a third perse n held in trust for the decedent, and to compel an account of moneys received by such third person from the administrator on a judgment fraudulently confessed [*681] by the decedent, is multifarious.' * But where the inter- ests of the plaintiffs are the same, although the defend- ants may not have a co-extensive common interest, but their interest may be derived under different instruments if the general ■ See ante, pp. 199, 300, marg. p. * 5 Paige, 137. ^ See Brady v. McCosker, 1 Comst. « 3 Barb. Oh. 432. 314. « 1 Comst. 331 ; Story's Eq. .PL, g ' 1 Mylne & Keen, 187 ; RicUmyer 530. V. JUcMmyer, 50 Barb. .55. See ante, ' 4 Jolins. Ob. 199. cases cited, 671, marfj. p. ' 2 Barb. Cb. 576 ; 5 Paige, 65. 752 DEMURRER. [CH. VII. objects of the suit will be promoted by their being joined, the complaint will be sustained.' [A joint action does not lie against one who erects a nuisance and one to whom he transfers it, the latter subsequently maintaining it.'] As to multifariousness, strictly so called, that is, where one, or a part of the defendants are able to say that they are brought in as parties upon a record, with a large portion of which, and the case made thereby, they have no connection whatever ; ' this also was the subject of demurrer under the former practice. [The remedj' is by joint demurrer.*] It is so also by the Code, which by the last clause of the section under consideration" provides : "But the causes of action, so united, must all belong to one of these classes, and, except in actions for the foreclosure of mortgages, must affect all the parties to the action, and not require different •places of trial, and must be separately stated." The causes of action joined in the same complaint must affect all the parties to the action. A joint claim against two defendants is improperly joined with a separate claim against one of them, and either defendant may demur." A single complainant, having distinct and independent claims for relief against two or [*682] more persons, cannot join them * as defendants,' and if so joined a demurrer will lie. But in some cases where the interest of the plaintiffs is joint, though the claims are distinct in respect to the defendants, they may be joined and the objection of multifariousness will be disallowed." And generally it is said that there is no positive and inflexible rule as to what in a court of equity would constitute multifariousness, which is fatal to the suit on demurrer, and the court will exercise a sound discretion in determining whether the subject-matters of the suit are properly joined or not, and whether the parties, plaintiffs or defendants, are also properly joined or not." Tin i^e principles, it must be repeated, are only applicable to the demurrer under the Code, in cases (and they are mainly or entirely for equitable relief) which ' See generally, as to the misjoinder ■■ § 167. of difforent causes of action, Story's ^ 5 Paige, 65 ; 6 id. 33. Eq. PI., S§ 530 to 538, ante, 680, ^ 1 3arb. Ch. Pr. 59. marg. p. ' ' ' Ante, pages 128, et seq., marg. p., ' jiess V. Buffalo, etc., 39 Barb. 391. Story's Eq. PI., § 535. And see cases ' Brady y. McOosker, 1 Comst. 231. there cited. ''Hens V. Buffalo, etc., 29 Barb. 391 ; » Story's Bq. PI., g 539. see post, 694, marg. p. SEC. II. J TO THE COMPLAINT. 753 do not fall within any of the classiiications enumerated in the several subdivisions of section 16Y. In cases which do fall within the provisions of that section, the rule as to what may and what may not be joined is created by the Code and is inflexible. The causes of action must not require different places of triad. If such causes of action be joined, as for example, in ejectment to recover two pieces of land situated in different counties, a demurrer will lie. The Code does not in terras prohibit the [*683] joining of different causes of action which require *diiFer- ent modes of trial. If, therefore, it be true, as has been asserted, that the Code has failed in establishing a uniform mode of trial in civil actions, a mere defect of statement on that account, if the causes of action be otherwise well joined, will not be the proper subject of demurrer. The causes of action must he separately stated.^ A demurrer does not lie to a complaint or answer on the ground that several causes of action or defenses which may be united in the same pleading are not separately stated." The remedy is by motion.' 6. That the comjplaint does not state facts sufficient to constitute a cause of action. — This is by far the most usual and the [^■687] most important ground for a * demurrer to the plaintiff's complaint. [A demurrer on this ground has no applica- bility to the capacity of the plaintiff to sue. It lies only where the facts, stated as the cause of action, fail to show one.*] A failure to demur, however, does not waive the objection.' The judgment obtained may be appealed from and will be reversed, if the complaint does not state facts sufficient to constitute a cause of action." All that a party admits on a default is the truth of the facts alleged against him, and, if the record does not show enough to sustain the judgment, it will be reversed. And so also even if an answer is put in and a verdict or report of referees ' Ante, p. 344, et seq., marg. p. 238; Henderson v. Jackson, 9 Abb. N. ^ Bass V. Comstock, 38 N. Y. 21, 36 S. 293 ; Dorman v. Kellam, 4 Abb, 303 ; How. 383; Anderson v. Hill, 53 Barb. Golton v. Jones, 7 Rob. 164; Hunter v. 238 ; Henderson v. Jaekson, 9 Abb. N. Powell, 15 How. 231 ; ante, 844, marg. p. S. 393 ; Dorman v. Kellam, 4 Abb. 803 ; * Plimnix Bank v. Donnell, 40 N. Y. Golton V. Jones, 7 Rob. 164 ; Hunter v. 410. Powdl, 15 How. 221; ante, 344, marg. p. ^ Code. § 148. 3 Bass V Comstock, 38 N. Y. 31, 36 « Raynor v. Clark, 7 Barb. S. C. 581, How. 383 ; Anderson v. Hill, 53 Barb, at a general term, 5tli district. 95 754 DEMURRER. [CH. VII. is rendered for the plaintiff.' [Tlie last remarks, however, should be qualified so as to include only cases where the objection is specifically taken on the trial.] I had occasion to "consider very fully, in chapter four of this work, the subject of the sufiiciency of the complaint, and what facts were necessary and essential to be set forth to enable the plaintiff to maintain his action. In order, therefore, to determine whether a demurrer may be properly interposed to a complaint under this sixth subdivision, it will only be necessary to examine the pleading by the rules for testing the sufiiciency of the com- plaint prescribed by the Code, and generally considered in the chapter referred to. The question will be, Does the complaint allege facts which, if proved in evidence, or admitted, will entitle the plaintiff to judgment? If one or more of such allegations of fact are wanted, the plaintiff may demur. So, too, he may demur for insufiiciency, if the complaint shows a former [*688] *good cause of action, but discharged at the time of suit. Facts sufficient to constitute a cause of action must be construed to mean a, present cause of action, and, if such objection is apparent on the face of the complaint, in analogy to the equity practice, it may be demurred to ; '' [although by section 74 of the Code, where the complaint shows a cause of action barred by the statute of limitations the objection must be taken by answer and not by demurrer.'] [*689] *If the complaint show a good caiise of action and some- thing more, that is, if matters not essential or material to a single cause of action, and not in any sense constitutive as matter on which the right of action depends, be alleged, the defendant cannot demur thereto. It has been repeatedly held that a demurrer must go to an entire complaint, and will not lie to a part thereof. Nor will a demurrer lie to immaterial matter in a pleading, or for irrelevancy, or uncertainty, or other superfiuous [*690] matter." * Nor to a complaint containing a good cause ' Bristol V. Rensselaer and Saratoga 29 How. 574, note ; Swift v. Drake, MS., R. R. Go., 9 Barb. S. C. 159 ; Burnham Gen. T., 6tli Dist. ; Waltermere v. West- V. De Bemise, 8 How. Pr. 159. over, 14 N. Y. 31 ; Butler v. Mason, 5 '' 4 Hen, and M. 473, 1 id. 18, 2 Paige, Abb. 40 ; Winchell v. Bomnan, 21 Barb. 280, 4 id. 364. 448, 18 N. Y. 558. 2 Lefforts v. IloUhter, 10 How. Pr. ■• 2 Sandf. 702, 1 C. R. N. S. 325, 1 383; Sands v. St. John. 33 id. 140, 30 Duc-r, 343, 6 How. Pr. 475, 10 id. 43, Barb. 638 ; atfirmed in court of appeals, 4 id. 413. SEC. II.] TO THE COMPLAINT. 755 of action, mixed iip with irrelevant or immaterial matter.' But this, as has been observed, is not to be extended to the im- proper union of two or more causes of action in the same com- plaint, in violation of section 167. One or more of such causes of action, it is true, may be redundant or surplusage, but a demurrer, as we have seen, is expressly allowed for that cause by the Code, unless, perhaps, in the case where a good cause of action is united with one entirely untenable, in which case the latter may be struck out. When it is said, too, that a demurrer must be to an entire complaint, it is meant only to an entire cause of action in a complaint. Where a complaint contains more than one cause of action, and a general demurrer is inter- posed to the whole complaint, if either of the causes of action is good, the demurrer will be overruled.'' If there are several causes of action or counts set forth, separate demurrers may be interposed. And it was said in Ogdensburgh Bank v. Paige,^ that a complaint averring several distinct acts done and com- mitted by the defendants, and insisting that by each of said acts the defendant became liable to pay, might be regarded as analogous to a declaration containing several counts, and separate demur- ' rers might be interposed to each cause of action.' [*691] * A demurrer to a complaint will not lie on the ground that the complaint does not expressly aver or show that the debt for which the action was brought had become due at the time of the commencement of the action. This was held, under the Code, in Maynard v. Talcott^ where it was said that the court would not intend that suit was brought before the cause of action accrued, for the purpose of supporting a demurrer ; but if it should presume either way, the presumption would be that the debt sued on was due before the commencement of the action. [If, however, the complaint should affirmatively show that the demand sued upon was not due, a demurrer would clearly lie.j A prayer for relief in the complaint cannot prejudice the defendant and will not be struck out on motion,* nor can it be ' Watson V. Husson, 1 Duer, 242. rer to the whole complaint for not stat- '' Butler V. Wood, 10 How. Pr. 222. ing each cause of action separately ' 2 Code R. 75. have been well taken ? ■* And query within the cases cited, ^ 11 Barb. S. C. 569. ante, pp. 683, 684, would not a demur- ^ Averill v. Taylor, 5 How. Pr. 476. 756 DEMUREER. [CH. VII. demurred to. Thus, in Beale v. llayes^ in the New York superior court, it was held to be no ground of demurrer to a complaint that the plaintiff claimed judgment for a larger amount than, by his own showing, he could be entitled to recover. Whether the plaintiff could be allowed to prove dam- ages exceeding the sum stipulated in the agreement, for a breach of which he had sued, was a question which the court held con- cerned the event of the suit, and not the cause of action, and, therefore, could be raised only on the trial. In Maxwell v. Farnam^ it was held that a complaint was bad on demur- [*692] rer which * alleged the taking, detention and conversion of personal property, and claimed not only damages for the conversion, but also a re-delivery to the plaintiff. The decision in this case seems to have been put upon the ground of an improper union of different causes of action in violation of section 167, and not merely upon a defect in the prayer for judg- ment. [The ease is probably not good law, as damages for tak- ing and detention are part of a cause of action in replevin.] An objection to the mere form of expression which the plain- tiff uses, and to the phraseology, is not matter of substance, and is not subject to demurrer. If in substance correct, but not in form, the party aggrieved should require the pleading to be made more definite and certain by amendment.^ And, generally, all merely formal defects, whether in the phraseology, or in the state ment of facts, which, under the former practice, were the appro- priate subjects of a special demurrer, cannot now be reached or corrected by demurrer. It applies, says Justice Gteidlet, in Richards v. Edick^ only to such defects as would render the count bad on a general demurrer at law, or bad for want of equity in chancery. " The counts of the complaint, therefore," he remarks, " to be overthrown by the demurrer must present defects so substantial in their nature, and so fatal in their character, as to authorize the court to say, taking all the facts to be [*693] * admitted, that they furnish no cause of action whatever." This was said in regard to a complaint on an agreement inter partes, which contained no express contract on the part of 1 5 Sandf. 640. See, also, Moran v. ^ jio^odl v. Vmzer, 1 C. R. N. S. 270. Anderaon, 1 Abb. Pr. 388. " 17 Barb. 260. See, also, Dt'imtt v, 2 7 How Pr. 336. Swi.fl, 3 How. Pr. 280. SEC. 11. J TO THE COMI'LAINT. 757 the defendant, but showed on its face a contract hj implication, and the complaint setting forth siich contract, without averring a promise or engagement of the defendant, was held good on demurrer. In addition to the cases already mentioned in which a demurrer may he proper for an insufficient statement of facts, and what was said as to the sufficiency of the complaint, ante, chap. 4, one or two further remarks only will be made in conclusion of this subject. The Code has apparently assimilated the demurrer to the com- plaint under the new practice, to the same mode of proceeding under the former practice in equity. Whenever, therefore, gen- erally, a demurrer to tlie substance of the bill would have been proper under that practice, a demurrer for a like defect may be allowed by the Code. [*694] * In most cases, a demurrer to a complaint for defect of substance will be proper where a demurrer to a bill for the same cause would have been sustained before the Code. Thus the objection may be so taken when the complaint shows that the plaintiff has no interest in the subject-matter, and no title to institute a suit concerning it.' As if the complaint does not make out an equitable case in the plaintiff to the relief which he seeks ; or if a suit be brought by one creditor against another to deprive him of a priority which he had lawfully obtained without any fraud.' So in case the complaint shows a claim which is unlawful, or against the policy of the law, for in such and like cases there is a defect of title to maintain the suit. Want of interest in the subject-matter of the suit is not only a good cause of demurrer, in the case of a sole plaintiff', but if the suit is joint, want of interest in either of the plaintiff's is equally defective." As if one of the parties be a mere agent of the other and have no further interest." So also if two parties sue and the title is alleged to be in the one or the other of them in [*695] the alternative, for this * shows that there must necessarily be a misjoinder of one or the other of the parties.* ' Cooper's Eq. PI. 166, 169 ; Mitf. Bq. Palmer v. BaMs, 28 id. 242 , Carring PI 154 231. tomv.CTO(!yfc6r,4Abb.N.S.335,37N.Y » Story's Eq. PI., g 509, and §§ 231 336, and see ante, 671, 681, marg. p.'\ to 237. [But see, after trial upon the ^ Barb. Ch. 157. meiits, Aekley v, Tariox, 31 N. Y. 564 ; * See ante, page 133, ma/rg. p. 758 DEMUKKEll. [CH. VII. Want of interest in the defendant in the subject-matter is also a matter of substance, and demurrable if it appear upon the face of the complaint. Thns a married woman made a party defend- ant in an action on contract, as on a bond or promissory note executed jointly by herself and husband, may demur. The com- plaint should not only show /that the defendant has an interest, but also that he is liable to pay the plaintiff's demand. And in general if the case stated is such, that, admitting the whole com- plaint to be true, the court ought not to give the plaintiff the relief or assistance which he requires, in whole or in part, against all or against any of the defendants, it is not only a sufficient but an appropriate ground of demurrer ; and the objection thus appearing on the face of the complaint should be taken by demurrer, and ought not to be taken by plea.' This rule, derived from the former mode of pleading in equity cases, is conceived to be equally applicable to pleadings under the Code.'' The manner of pleading the demurrer, and of stating the ground of the alleged objection, will be considered under its proper head in this chapter. [*696] * SECTION III. WHAT MATTBKS IN THE ANSWBK OR EBPLT MAY BE DBlTTmRBD TO. Under the former equity practice a demurrer \vas applicable to a bill only, and could not be put into a plea or answer. If the answer was bad in substance, and no proof was required by the plaintiff, the cause could be heard upon bill and answer. This practice was retained by the original Code. 'So demurrer was allowed to an answer or reply. And if an insufficient answer was put in, it seems the defendant might move to strike it out or for leave to proceed as for want of an answer.' Or, as in Boijce V. Brown,* if the case was brought on at the circuit, judgment would be rendered for plaintiff (in analogy to cases in equity), on complaint and answer. 1 Story's Bq. PI., § 526. How. Pr. 177 ; BaUey v. Easterly, 7 id. 2 Soxie V. Oushmmi, 7 L. O. 149 ; 336. Oettv V. Hudson Bimr B. R. Co., 8 ^ 1 Code R. 73. 4 3 How. Pr. 391,7 Barb. S. C. 80. SEC. III.] TO THE ANSWER AND REPLY. 759 This practice was found to be inconveuieiit ; accordingly in the amendments made to the Code in 1849, the defect was remedied by allowing a demurrer to both answer and reply. It was originally allowed to " one or more of several defenses; " ' and, as the section was subsequently amended, to one or more of several " defenses and set-off." " By a still further [*69T] *amendment " it was restricted, according to some of the decisions, to the case of an answer containing new matter constituting a " counter-claim." The section now reads as follows : "■ When the answer contains new matter, constituting a counter- claim, the plaintiff may, within twenty days, reply to such new matter, denying generally or specifically each allegation controverted by him, or any knowledge or information thereof sufficient to form a belief, and he may allege in ordinary and concise language, with- out repetition, any new matter not inconsistent with the complaint constituting a defense to such new matter in the answer, and the plaintiff may in all cases demur to an answer, wJiere, upon its face, it does not constitute a counter-claim or defense, and the plaintiff may demur to one or more of such defenses or counter-claims, and reply to the residue of the counter-claims." Section 155, allowing a demurrer to the reply, remains the same as passed in 1849. [*698] "If a reply of the plaintiff to any defense set iip by the answer of the defendant be insufficient, the defendant may demur thereto, and shall state the grounds thereof." [*699] * For example the counter-claim, as we have seen, is in the nature of a cross-action between the parties, and should be stated substantially the same as an original complaint.' Whatever defect, therefore, would have been fatal on demurrer to such a defense, if stated as a new action, may be regarded as embraced within the section, and a demurrer will lie to the answer for such defect. Thus, if it show on its face another action pending for the same cause, or several causes of action (counter-claims) be improperly united, it is manifestly improper as a defense under the Code ; or, if any material allegation or averment, which it is necessary to prove on the trial in order to sustain it, be omitted, it is also insufficient. These remarks are equally applicable to the reply. ' Code of 1849, g 153. ^ Amendment of 1853. 2 Amendment of 1851. ■* See ante, chap. 5, § 4. 760 UEMURREIl. [CH. VI]. So, too, the Code requires that if tliere are several L*700] defenses, thej shall each be separately stated, and * refer to the causes of action which they are intended to answer in any manner in which they may be intelligibly distinguished. And the general principles which have been already indicated in regard to a demurrer to a complaint for this cause,' may be applied to the demurrer to an answer. The same may be also said of the reply. Many of the rules of pleading relative to a demurrer to a com- plaint, as laid down in the last section, are equally applicable to an answer or reply. Thus, we have seen that a demurrer must go to an entire complaint, and wilhnot lie to a part thereof. The same has been expressly held of the answer, as where a defendant selected several sentences forming a part of the statement of one entii'e defense, and demurred to them, replying to the residue. The question was, whether the defendant could demur except to an entire defense. Gridley, J., overruled the demurrer, adding that he would have struck it out had a motion been made to that effect.'^ In a more recent case,' however, it has been doubted whether the demurrer is such a pleading as can be corrected on motion to strike out, unless in the case of a frivolous demurrer, provided for by section 247. [*701] * Demurrer to denial. — [A demurrer does not lie to an answer setting up no new matter, but merely denying the allegations in the complaint." If the denial be sham, frivo- lous or immaterial, the remedy is by motion.'] [*704] * In respect to the demurrer to a denial in the reply, the same rules are applicable. Demurrer to new matter. — We have seen in a previous chap- ter" in what cases a defendant may, and in -what cases he must set up a defense by way of new matter in his answer. [*705] The mode and manner * of stating such facts have also been particularly noticed. The new matter set up in the ' Ante, p. 344, et seq. 683, 684, marcf. O'Connor, 10 Abb. 362 ; Maretzek v. pp. Gauldioell, 19 id. 35. '' Gobi) V. Frazee, 4 How. Pr. 413. ' Lund v. Seaman's Savings Bank, 3 Smith V. Brown et al, 6 How. Pr. 37 Barb. 139, 33 How. 258 ; Maretzek 383. V. CaaldweU, 19 Abb. 35. * Lund V. Seaman's Boeings Bank, * Ante, chap. 5, § 3. 37 Barb. 129, 23 How. 258; Riee v. SEC. III. J TO THE ANSWER AND REPLY. 761 answer is required to be, in the language of the Code, " new matter constituting a defense.'''' This means that the matter set up must he an entire defense to the whole action, or to such part of it as it professes to answer. Thus, matter in mere mitigation of damages, without any direct issue being taken in the case, is not a defense within the meaning of the Code.' When such matter is pleaded as a defense, the plaintiff, it seems, has his elec- tion to move for judgment as on a frivolous answer, or to inter- pose a demurrer. This was considered the rule in Matthews v. Beaeh^ where a demurrer, interposed to mitigating circumstances set up in the answer to a libel suit, was sustained. Such an answer, says the court, may be struck out as frivolous ; but in all cases when such a motion can properly be made, the plaintiff has an election to make it or demur." In Lane v. Gilbert^ where mitigating circumstances were pleaded without any direct issue having been taken upon the fact, a motion for judgment, on account of the frivolousness of the answer, was regarded as the proper remedy. Since the amendment allowing a demurrer to the answer, the plaintiff may now, undoubtedly, in such cases, have his election to demur, or move for judgment in a [*706] summary manner. * But the rule does not extend so far as to allow a demurrer to a partial defense set up bj^ way of counter-claim, such as recoupment of damages, or set-off", even though such counter-claims do not profess to be entire defenses. Nor does it extend to a demurrer to matter which may be alleged in the answer, in connection with a denial, or other issue of fact on the merits, even though it be matter which might be given in evidence without being specially pleaded. The question as to what matters not constituting a full defense inay thus be pleaded, has been already treated of in another part of this work." But though a frivolons answer, or even an irrelevant answer, as a whole, may be demurred to, yet mere irrelevancy or redun- dancy is not a ground of demurrer ; that is to say, where the answer contains irrelevant matter, if it contain also a valid defense which may be separated from the irrelevant matter, as in Watson V. Ilusson,'' the demurrer will be overruled. Nor must the demurrer ' Neicman v. Otto, 4 Sandf. 668. * Ante, pp. 481, 489, 499, 504. 2 5 Sandf. 256. ' 1 Duer, 343. See, also, 6 How. Pr 3 9 How. Pr. 150. 475 ; 3 Sandf. 743 ; 1 C. R. N. S. 335. -96 762 DEMURRER. [OH. VII. be too broad ; that is to say, it must not be to the whole answer, with- out specifying the parts to which it is intended to apply. How- ever defective some of the defenses may be, if the answer contain one valid denial or defense, the demurrer, if in form taken to the whole answer, will be overruled ; and the rule is the same [*T07] * in regard to a demuiTer to the complaint.' But a demurrer which commences by stating that the plaintiff demurs to the answer, and then specifies the parts of the answer to which exception is taken, and to which the demurrer is intended to apply, will not be deemed too broad, or as extending to other parts of the answer than those speciffed." It has been held that a plaintiff cannot demur to one defense in an answer which is inconsistent with his reply denying other defenses. The court, it is said, in determining upon a demurrer, will take into consideration all those parts of the answer which precede that covered by the demurrer, so that, as in Beach v. Burdell^ the sufficiency of a defense may depend upon the fact whether other allegations than those demurred to have been put in issue or not. As to the sufficiency of new matter in the answer, generally, and the mode and manner of the statement thereof, and in what cases a demurrer will lie, the reader is referred to the preceding chapter which treats on the subject of the answer.'' The test of the sufficiency of an answer of new matter, when pleaded as a full defense, is very accurately laid down by the court in Oihon v. Levy' in the general proposition, that [*708J " the facts * set forth which are relied on must be set forth at least with so much certainty that, admitting them to be true, they constitute a bar to the plaintiff's recovery." That is to say, if all the facts set forth in the answer are true, exactly as they are alleged, and yet the plaintiff is entitled to recover, either the whole of his claim, or the part of it assumed to be answered, the defense is insufficient and must fall on demurrer. The inquiry is, says the court, in Ketcham v. Zerega,^ " does the matter alleged, in the manner in which it is alleged, constitute a good defense to ' Butler V. Wood, 10 How. Pr. 333. ^ ^„,.,. y, Wright, 9 How. I'r. 543. 2 Matthews v. Beaeh, 5 Sandf. 356. * 2 Duer, 327. Approved by court of appeals, but tbe ' Ante, cliap. 5, § 3. judgment in this case was reversed on "2 Duer, 176. another point, 4 Seld. 173. ' 1 Smith's N. Y. Com. PI. 553. SEC. III. J TO THE ANISWEK AND REPLY. 763 the action ? There may be many imperfections, much surplusage, great vagueness and want of due particularity, or other objections to the answer, but on demurrer the sufficiency of the matter stated to constitute a defense is alone to be considered." It is scarcely necessary in this place again to remark the com- plete analogy between a defense by way of reply to new matter in the answer, and a defense by way of answer to the plaintiff's complaint. And the analogy holds good in all respects between a demurrer to the answer and a demurrer to the reply. As to what insufficiency in the reply will justify a demurrer thereto, the reader is referred to the section which treats specifically on that subject.' It is proper to reply a set-off to a set-off [*709] pleaded in the * answer.'' [In order, however, to avoid this objection, it is advisable, when possible, for the plain- tiff to amend his complaint by setting up the matter to be replied as a substantive ca^ise of action. In cases where plaintiff's counter- claim grows out of that set up by defendant, and does not constitute such a cause of action, this, of course, cannot be done.] If a plaintiff reply to an answer of new matter which does not set up a counter-claim, such a reply being a pleading not author- ized by the Code, will be set aside, or struck out on motion, as irregular within the rule indicated in Robinson v. Judd.^ It seems that a demurrer in such a case is not a proper way to raise the objection, the question being upon the irregularity, not the insufficiency of the pleading. Demurrer to counter-claim. — The counter-claim set up by the defendant in his answer to the plaintiff's complaint, it has been seen, is similar in its nature to anewaction, and the rules govern- ing the manner of such statement are the same.* And generally a demurrer will lie to such counter-claim for insufficiency in those cases where a demurrer would lie to the same matter if set up in an original complaint.' The Code, as we have seen, requires the counter-claim to be one existing in favor of a defendant and against a plaintiff [*710] between whom a several judgment * might be had in the ' Ante, chap. 6, § 1. to ^ 153, do not, we think, apply to the ' [Miller v. Losee, 9 How. 356 ; Reilly Code as it now stands.] V. mtcker, 16 Ind, 303 ; Turner v. ^ 9 How. Pr. 378. Simpson, 12 id. 413. The cases to the ^ Ante, chap. 5, § 4. contrary, cited by Mr. Wait in his notes ' See ante, § 3 of this chapter. 764 DEMURRER. [CH. VII. action.' No other is authorized to be set up, and if a viola- tion of the rule appears on the face of the pleading it will be good ground for demurrer. Thus, where A, in a joint action brought by B & C, pleads a counter-claim existing against B alone, it may be demurred to unless it also appear that a separate judgment may be proper in respect to the subject-matter between A&B. So if a counter-claim is not connected with the subject of the action within the rule as we suppose it to be established,'' or does not arise out of the contract or transaction which is the founda- tion of the plaintiffs action, such defect, if apparent and capable of being pointed out in the pleading, is a valid ground of demurrer. Thus in an action on a note given on the sale of real estate, if the defendant should set up by way of recoupment, as a counter-claim, that the plaintiff, subsequent to the sale, committed a trespass on the lands, it would be manifestly bad pleading and liable to demurrer. But matter which could heretofore have been properly introduced in evidence to mitigate or defeat damages by way of recoupment, though formerly it could only be set up by way of a notice, and could not be pleaded, may and must now be stated in the fonli of an answer, and is not demurrable, as a partial f**?!!] defense." So too in respect to a set-oiF, the Code * requires it to be alleged as a counter-claim in the answer, and it may be so alleged either as a full or partial defense, and though a set-off is considerably more extensive under the Code than formerly under the statiite,* it now embracing matters of un- liquidated as well as liquidated damages, and being allowed in all cases of actions on contracts, yet it must be confined strictly within these rules of the Code. If A undertake to set off dam- ag;es, arising on contract in a suit brought by B for damages, for a tort or wrong, the remedy is by demurrer. And so if the action is on contract, and the set-off appear on its face to have accrued to the defendant after the commencement of the action, the plaintiff' may demur. 1 Code, § 153. 3 WiUis v. Taggard, 6 How. Pr. 433, ^ Ante, pages 565, 566, marg. p. '' Ante, niarg. pp. 554, 559. SEC. IV.] GROUNDS OF, HOW STATED. 765 SECTION IV. HOW THE GROUNDS OP DEMTIREEB, ARE TO BE STATED. Prior to the decision of the court of appeals, in Unire v. Baker^ it was a disputed question whether, under the Code, a general demurrer was allowable, or, on the other hand, whether [*712] the party * demurring was not bound to point out specifi- cally the defects, or omissions, which he claimed rendered the pleading bad for the cause specified. The demurrer to the complaint, answer, and reply, is required by the Code to specify or state the grounds thereof.'' And while many of the cases held a demurrer sufiicient which stated generally, in the language of the statute, that " the complaint, etc., does not allege facts suffi- cient to constitute a caiise of action," " others considered it essen- tial to the validity of the demurrer to point out the precise ground of the defect.' The conflicting decisions on this subject may be considered in a measure settled by the court of appeals, in the case of Haire v. Baker, above cited, in which a demurrer in the words of the statute, averring that " the complaint does [*713] not state facts sufiicient to constitute a cause of * action," was considered a compliance with the law, and sufficiently definite to raise the question of the sufficiency of the facts stated in the complaint." [In demurring to a complaint on the grounds that the court has no jurisdiction of the person of the defendant, or of the sub- ject of the action, or that the complaint does not state facts suffi- cient to constitute a cause of action, it is sufficient to state such grounds in the language of the Code." With respect to the other subdivisions of section 144, a demurrer under either should specifi- ' 1 Selden, 357. * GUnny v. Hitcldns, 4 How. Pr. 98 ; 'Section 145 provides that the de- PurdyT.Carpenter& Ferris, Q \A.^%1\ murrer shall distinctly specify the Wliite v. Hudson Siver Ins. Co., 7 id. grounds of objection to the complaint. 341 ; and see also Grant v. Lasher, 2 Unless it do so it may he disregarded. Code E. 2 ; Hunter v. Il^isbee, id. 59 ; ^ Darkee v. Saratoga & Washington Hinds Y.Tweddle & Darlington, 7 How. Railroad Go., 4 How. Pr. 236 ; Smft v. Pr. 278. J)avitt, 3 id. 281 ; Hyde v. Conrad, 5 id. » ^^-tMr v. Brooks, 14 Barb. 533. 112 ; Anibal v. Hunter, 6 id. 255 ; Hoag- ^ Haire v. Baker, 5 N. Y, 357 ; John- land V. Van Winkle, 8 id. 343 ; Getty v. son v. Wetmore, 12 Barb. 433 ; see Getty Hudson River Railroad Co., id. 177; y. Hud.^on River B. R., 8 Tiovr. 177. Johnson v. Wetmore, 12 Barb. 433 ; Paine v. Smith, 3 Duer, 298. 766 DEMURREE. [CH. VII. cally point out the grounds of objection.' The objection must appear on the face of the complaint,' and judgment cannot be given for the party demurring on a groxmd different from that stated in the demurrer."] In Getty v. The Hudson River Railroad Company* the court said : " In some instances, two distinct grounds of demurrer are embraced in one of the subdivisions of the section mentioned. Thus, the defendant is authorized to demur when it appears that the court has no jurisdiction of the person of the defendant, or the subject of the action. In a demurrer for want of juris- diction it would, undoubtedly, be necessary for the defendant to state whether the alleged want of jurisdiction related to the ' person of the defendant,' or ' the subject of the action.' So, when the defendant demurs on the ground that it appears on the face of the complaint that there is a defect of parties, plaintiff or defendant, he should state whether it is a defect of parties plain- tiff or parties defendant, upon which he relies. But in respect to the other grounds of demurrer, I do not understand [*Y14] that any thing more is required than to * state the objection in the very words of the statute." In regard to a demurrer for defect of parties, the same distinc- tion was pointed out in a very early case,' under the Code, by Justice Geidlet, and indeed, a rather more strict, and, I think, perfectly correct principle indicated, that is to say, that though a ground of demurrer is well assigned which alleges generally that the complaint does not state facts sufficient to constitute a cause of action, yet there is a class of cases in which such a demurrer might not be sufficient ; as for example, to say generally that the complaint showed there was a defect of parties, without specify- ing who should be joined, or who were misjoined. This was precisely the equity rule. Where a demurrer was put in for want of the necessary parties, it must show who were the proper par- ties from the facts stated in the bill, not indeed in all cases by name, for that might be impossible, but in such a manner as to point out to the plaintiff the objection to his bill, and to enable ' Skinner v. Stuart, 13 Abb. 443, 457 ; = Wilson v. Mayor, 6 Abb. 6 ; Pulton Bichtmyer v. RirMmt/er, 50 Barb. 55 ; Fire Ins. Go. v. Baldwin. 37 N. Y. 648. Palmer v. Bavi.^, 3S N. Y. 246, 347. * 8 How. Pr. 177. ■' Wihon V. 3/a.i/ur, 6 Abb. 6. ' Be Witt v. Sioift, 3 How. Pr. 381. SEC. IV.] GEOXJNDS OF, HOW STATED. 767 him to amend by making proper parties. ' And this, it must be conceded, is a safe and convenient rule of practice under the Code. Though demurrer, which specifies generally for cause that the complaint does not state facts sutficient to constitute a cause of action, is undoubtedly sufficient within the decision in [*715] JSaire v. BaTcer, * supra, there is nothing to prevent the defendant (or if the demurrer be to the answer, the plain- tiff), from pointing out specifically the ground of objection. In the recent case of Doughty v. Develinj' the court says, it will not feel bound to sustain a demurrer upon a ground not raised in the argument. So, on appeal, an objection raised for the first time in the appellate court may be disregarded. In order, therefore, to avoid any question on this point, a brief specification in the demurrer of the defects'in the pleading objected to, and coupled with the general demurrer in the words of the statute, will be found convenient in practice. There are cases, no doubt, in which, from their natrire, a general allegation in the language of the Code is not only sufficient, but all that can be proper. Thus, if a demurrer is taken for the cause that " there is another action pending between the same parties for the same cause," and the complaint plainly show this on its face, there can be little doubt, as was said in Swift v. Dewitt, supra, that a demurrer in these words alone would be proper. In such case it might be difficult to make a more distinct or par- ticular specification of the grounds of demurrer. But in nearly every other class of cases such particular specification can, and, whenever necessary to apprise the other party of the exact point of objection, should be made, or if aot made, the [*716] * court, on the trial or hearing, might, in a proper case, refuse to permit the point to be raised . Thus, if the plaintiff demur on the ground " that several causes of action have been improperly united," the question might arise as to what " im- proper " union the party objecting meant ; whether a union of two causes of action, separate and distinct in themselves, and not referable to one only of the classes specified, or a union by blending and mingling together, contrary to the Code, two or ' Story's Eq. PI., § 543, and cases ' 2 Duer, 637. there cited. 768 DEMUEREK. [CH. VII. more causes of action which may be properly united if separ- ately stated. In such case it would be manifestly proper to state distinctly the precise point of the defect which it is intended to raise on the argument, and if not done, I think the court, in analogy to the practice on general and special demurrer under the old system, should refuse to permit any other question to be raised on the argument than the general question whether the causes of action are compatible.' Indeed, it has been expressly held in case of a demurrer to an answer under the Code,'' that if the demurrer does not specify the grounds thereof, the objection cannot afterward be taken on the argument. The same prin- ciple is doubtless well applied to a demurrer to a complaint or reply. [*717] * The party demurring is required to " state the grounds " of his objection. In the case of a demurrer to the complaint, he must " distinctly specify " such grounds of objection, and if he do not, the demurrer may be disregarded ; that is, treated as a nullity (the plaintiff having returned it, or notified the defendant that it would be disregarded),^ and the plaintiff may thereupon enter judgment, as in case of a default. The Code is silent as to how a demurrer to an answer or reply is to be treated, when such demurrer does not state the ground of the insufficiency. I understand, however, the practice to be that it may be treated in the same way as a demurrer to a complaint which is defective in this particular. A demurrer, it has been said in a late case, is a pleading which is not properly within the 160th section of the Code, so as to be the subject of a motion to strike out or make more definite ; * unless, indeed, in case where, by the Code, the demurrer is clearly frivolous.' If this summary manner, therefore, of treating the demurrer as a nullity were not allowed, the party aggrieved would have no remedy except to bring it on for argument in the usual way. ' And this has been so held by Jus- ^ Kneiss v. Seligmnn, 8 Barb. S. C. tice Dean, in the late case of Mom-e v. 439, 5 How. Pr. 435. Smith and Mar-ilmll, 10 How, 361, and ^ See practice ou disregarding a a demurrer to a complaint overruled pleading, ante, pp. 376, 589, otot'J' p. for not specifying tlie precise ground '^ Smith y. Brown, 6 How. Pr. 685 ; thereof, namely, that the causes of See also Otis v. Ross and others, 8 action were not separately stated in id. 193. the complaint. ° Code, § 247. SEO. V.J OBJECTION TO PLEADING, HOW TAKENv .769' [*718] * SECTION V. OBJECTION TO PLEADING WHEN TO BB TAKEN BY ANSWER, "WHEN- ON MOTION OB BY DEMOEBER, AND WHEN DEEMED WAIVED. An objection to a defective pleading may be taken in various ways. Sometimes it can be done only by demurrer ; sometimes a motion to strike out tbe defective pleading is the proper course ; sometimes a party has Ins election to adopt one or the other modes ; sometimes the objection can be raised by answer alone ; and sometimes it may be raised after issue of fact, on the trial," or even at a later stage of the cause. These various modes of objection to a defective pleading have already been considered to some extent in the course of this work, their distinction pointed out, and perhaps most of the decisions upon the subject referred to. It may, however, be useful, briefly, to present in this place a summary view of the question, for convenience of reference ; and first, in what cases should the objection to a pleading be taken. By a/nswer. — A party may either demur to or answer the pre- vious pleading of his adversary. He may do the one or the other, but cannot do both to the same cause of action. If he answers, his demurrer is waived, though it is presumed he might be permitted by the court, on terms, and on good [*719] * cause shown, to withdraw an answer, and demur. When a demurrer has been overruled, the party demurring is not entitled to put in an answer as a matter of right, but the court in its discretion may allow him to do so on such terms as may be just, if it a/ppear that the demurrer was interposed in good faith} [If the demurrer be allowed for the cause mentioned in the fifth subdivision of section 144, the court may, in its discretion and upon such terms as may be just, order the action to be divided into as many actions as may be necessary to the proper determin- ation of the causes of action therein mentioned.] Under the old practice, where a demurrer was not frivolous, the court would allow it to be withdrawn on payment of costs, after ' Code, § 172. 97 770 DEMUEEEE. [CH. VII. tliey had ruled against it, on application made at the same term before judgment was entered.' Otherwise, if the demurrer was frivolous, even though the application was accompanied by an affidavit of merits." And by statute, where the demurrer was special for form, and overruled, judgment was absolute, and no plea or other defense could be allowed.'' This, however, did not apply where the objection could be raised by general demurrer.* Under the Code it must appear, in all cases, that the demurrer was interposed in good faith, in order to authorize the court to allow an answer at all. Thus, the judgment, if a frivolous demur- rer is of such a nature as to be clearly apparent that it is put in as a sham defense, will be final, and no affidavit of merits can help it ; ° [although a defendant may, in such case, be allowed to answer, on giving security for the recovery."] In every other case [*720] it is within the * discretion of the court, on overruling a demurrer, to allow an answer or not; but the usual course is, on overruling the demurrer, to give leave to the defendant to answer on payment of costs, without any affidavit of merits ; [unless it appear that no amendment can aid the party.'] If this provision, however, be not included in the order overruling the demm-rer, the defendant may obtain it on motion, supported by an affidavit of merits, and that his demurrer was interposed in good faith, [If the party desire to amend he should avail him- self of the liberty to do so, and not appeal from the judgment.'] It is to be observed that the answer is proper only to raise an objection to a pleading where that objection does not appear on the face thereof, as, for want of parties, another action pending, etc., etc. An answer which undertakes to raise an objection to the complaint of any one of the causes of demurrer enumerated in section 144, where the objection appears on the face of the pleading, may be regarded as insufficient, within the meaning of ' 1 Johns. Cli. 411,2 id. 284,3 id. 300, was put in in good faitli. Appleby v. 3 Jolms. 140, 3 Gaines, 3U9. Mkins, 4 Sandf. 673. 2 1 Johns. 135; but see 10 Wend. » Scott v. Dimeomhe, 49 Barb. 73. 623. '' Snow v. Fourth Nat. Bank, 7 Rob. 3 2 E. S. 353, i5 6, 3 Edm, St. 864. 480. ^ 7 Wend. 461, « WhUinr/ v. Mayor, 37 N. T. 600 ; '' 'i'liDuyh it seems there are cases in Shihleti v. Anglf, 37 id. 6:!:! ; Ilitchinga which, on an ailidavit of merits, a de- v. Van Brunt, 5 Abb. X. S. 373, 38 fendant miglit be alh>wed to answer N, Y. 335 ; but see Fnlton Ins. Go. v. on tlie overraluift' of a filvolous de- Balijioiii.'.)! id.GVi; I'hutrhir v. Caii-dee. inurrer,t]ie I'ourt being satisfied tliat it 3 Keyes, 100. bEO. V.j OBJECTION TO PLEADING, HOW TAKEN. 771 the Code and the cases ah'eady cited. If the party intend to raise such objection he should do so by demurrer.' Objection when taken hy demurrer or on motion. — We have remarked that sometimes a demurrer is the only proper way to take the objection, sometimes it can be reached only on motion, and sometimes the party has his election. These distinctions have already been considered and noticed in the first three [*T21] sections of this chapter. The following *is a summary of the principles recognized by the Code, and which have been established by the leading decisions on this point: 1. Irrelevant and redundant matter cannot be demurred to, but the objection must be taken by a motion to strike out. This has been held in several cases which have been already cited, and may be considered as well settled. Irrelevant and redundant matters are allegations which have no bearing on the subject in controversy, and cannot properly be put in issue when found in connection with such as are pertinent and constitute a cause of action or defense. A demurrer is proper only when an entire pleading is defective." 2. Nor is a demurrer proper in like cases where the allegations are indefinite or uncertain. The remedy must be on motion to make the pleading more definite and certain by amendment.' 3. The motion to strike out is confined to mere matters of redundancy and surplusage. It cannot be made to an entire defense or answer, on the ground that such answer is irrelevcmt or redundant^ otherwise, if sham.' And so where an answer or reply \?, frivolous, an application may be made for judgment on that ground ; ° [but matter which is proper in mitigation will not be stricken out, provided the facts are properly pleaded.'] 4. In some of these cases, however, the plaintiif may demi^r, and is not necessarily driven to his motion to strike out ; [*722] tlius, he may demur to an * answer or defense which is irrelevant., or he may move to strike it out under section ' [Depuy V. Strong, 4 Abb. N. S. 340, * [Ante, marg. p. 604, Collins v. Cog- 37 N Y. 373, 3 Keyes, 603 ; Blosson v. fjilJ, 7 Rob. 81 ; FasnucM v. Stehn, 53 Barrett, 37 N. Y. 4':)4.] Barb. GoO. 2 3 Sandf. 713, fi How. Pr. 475, 4 id. * Gla,r& v. OtoVc, 7 Rob. 276. 413 1 Duer, 343 [Gollins v. Goggill, 7 « Code, § 347, and see ante, pp. 596- Rol). 81]. 605. 3 2 Sandf. 703, 6 How. Pr. 221. ' Dolemn v. Wilder, 7 Rob. 320. 772 DEMUEREE. [CH. VII. 152. "A pleading," says Justice Strong, is " irrelevant which has no substantial relation to the controversy between the parties to the suit.' Such a pleading must, of course, be insufficient. And so, too, a frivolous reply or answer may, if the party prefer, be demurred to as insufBeient, although the Code gives a more summary remedy by an application for judgment. And it is recommended as the more correct practice that, if there exist any doubt as to the character of the defense or answer in respect to its sufficiency, that is, whether it is really a frivolous or irrelevant defense or not, it is always proper to demur, instead of attempting to get relief on motion. An answer must be palpably frivolous to such a degree as to satisfy the court that it was interposed for delay, or some other improper motive, before it will be struck out on motion. If not so, the court will deny the motion and leave the party objecting to his demurrer.'' 5. A sham answer, it seems, is to be disposed of only on motion to strike out, and is not the subject of demurrer ; that is, adopting the strict definition of the term, that a sham j)leadvag is one which is good on its face, but false in fact.' [An appeal does not lie from the order, but should be taken from the judgment.*] [*723] 6. Where pleadings are defectively stated, that is, where they violate some essential rules of pleading adopted by the Code, as where the reply is inconsistent with the complaint, or where two or more causes of action or defenses are improperly joined, it seems that a demurrer may be allowed ; ° but the party aggrieved may also move to strike out, or make the defective ' Seward v. Miller, 6 How. Pr. 313, should move, under Eectiou 160, to and see ante, p. 603. have such matters expunged. If 2 5 How. Pr. 249, 6 id. 31, 313; 4 doubts are entertained as to the suffi- Sandf . 660, 1 Abb. Pr. 187, 1 Hill, 663, ciency in Law of the answer, and the 370, 673, 18 Wend, 680, 4 Cow. 143. opinion of the court is desired, it must And see, on this subject, pp. 598 to be obtained by demurrer. If, how- 603, marrj. }}., and cases there cited; ever, any defense is palpably insuffi- 6 How. Pr. 3.55, 5 id. 249 [13 id. 544, cient, a motion for judgment on the 5 Abb. 453, 455, 3 id. 3, 2 Hilt. 475, ground of frivolousness is the proper 14 Abb. 263.] course ; and if the matters of defense ' The above general rules are very can be shown to be clearly false, a concisely and well stated by Justice motion to strike out as sham will Barcolo, in Nichols v, Jones, 6 How. reach the evil." Pi'. 358, as follows : « Dahney \ . Greelc)/, 13 Abb. Pr. N. "If an answer, otherwise good, is S. 191. loaded with unnecessary and redund- ' See what was said on this point, ant matters, the plaintiff's counsel ante, pages (hS3, 684, marg. p. SEC. V.J OBJECTION TO PLEADING, HOW TAKEN. 773 pleading more definite and certain ; and lie should be required to resort to his motion whenever the defect can be effectually cor- rected in that way. Objection, wlien may he raised on the trial, or afterward, and when deemed waived. — Every objection which may now be taken by demurrer, or which, if not apjDearing on the face of the com- plaint, should be set up in the answer, is deemed to be waived by a failure to demur or answer, except only the objection to the jurisdiction, which may be raised at any time, and the objection that the complaint does not state facts sufficient to constitute a cause of action.' [If the objection be that plaintiff has not legal capacity to sue, that objection must be specifically taken."] This section (section 141) is exclusively applicable to the [*Y24:] pleading on the part of the defendant. There * seems to to be a defect in the Code in not extending it to the plain- tiff's reply to a counter-claim. Thus, if a defendant do not demur for non-joinder of parties, apparent in the complaint, he is held to have vraived the objection ; but if the same defects occur in the counter-claim, the plaintiff" may omit to demur or otherwise point them out to the defendant, and yet be in a situation to take advantage of them on the trial. A alone may thus sue B on a contract in which C is jointly interested with A as plaintiff, and if the particular objection is not taken by demurrer or answer on the part of B it cannot be used on the trial to defeat the action ; but in a prior suit by B if A should set up the same claim by way of off-set, B need not raise the objection of the non-joinder of C in his reply, but may prove it on the trial in defeat of the off-set. The objection of an improper joinder of husband and wife as plaintiffs, as in an action to recover the possession of real property, owned by the wife, must be taken by demurrer if it appear upon the face of the complaint, and will be deemed waived by answer- ing over; ' so a suit commenced by the wife as sole plaintiff'. The objection that she is legally incapable of maintaining the suit by reason of her coverture must be taken by demurrer, or, if it do 1 Code ^ 144 ; Coffin v. Reynolds, 37 ' IngraJiam and wife v. Baldwin, 12 N. T. 640 -"Bishop y. Bishop, 7 Rob. 195. Barb. 10 ; [affirmed, 9 N. T. 45]. » Fulton Fire Ins. Go. v. Baldmn, 37 N. r. 648. 774 DEMXJEEEE. [CH. VII. not appear upon the face of the complaint, by answer, otherwise it cannot be raised on the trial.' [*T25] * But a defect of jurisdiction is not waived by a failure to take the objection by demurrer or answer. It may he shown at any time, and whenever it appears it is fatal to the action. So, also, the objection that the complaint does not state facts sufEcient to constitute a cause of action, though not taken by demurrer, is not waived." The objection may be raised upon the trial ; and where there are two defendants, if the complaint does not state facts sufficient to constitute a cause of action against one of them, and that fact appears on the trial, the complaint will be dismissed as to such defendant." Objections to the jurisdiction, and that the complaint contains no cause of action, may be raised even when the defendant having answered over, the plaintiff himself takes exception to such answer by a demurrer. For, on the argument of such demurrer, the defendant may attack the complaint, and if it is defective in either of these particulars, judgment will be rendered against him on demurrer.* The objections also, it seems, may be raised after answer put in, on motion of the defendant for judgment upon the ground of such defects in the complaint. An incui-able defect in the complaint, says Justice Baeculo, in Burn- [*Y26] ham v. De Bevorse * et al.," " is not waived by any pleading, but may be raised whenever the parties are before the court, either at special term by motion, or on the trial by motion in arrest after verdict. The court Tnay regard it even on general demurrer." And the objection may be taken on appeal, either where judgment has been rendered by default, or after an answer put in, and trial. For a defendant admits noth- ing more by a default than the truth of the facts alleged against him ; and on a trial the plaintiff cannot prove a good cause of action under a complaint containing none ; ° though, it is said, in ' Hastings v. MoKinley, 1 Smith's ' The People v. Banker, 8 How. Pr. N. Y. Com. PI. 273 ; [affirmed, Seld. 358, and see ante, pp. 653, 653, 654, notes, Oct. 1853, p. 19 ; see, also, Clark marg. p. v. Orego, 47 Barb. 599 ; Robins v. Wells, ' 8 How. Pr. 159. 1 Rob. 666]. " Uanor v. Clark, 7 Barb. S. C. S81 ; 2 Luddington v. Tefft, 10 Barb. S. C. Bristol v. Rensselear and Saratoga E. 14. B. Co., 9 id. 159. ^Montgomery County Bank v. Albany City Bank.'S Seld. 459. SEO. TI.j FEIVOLOUS, AND PEACTICE THEEEON. 775 Carley v. Wilkins,' that where the defendant seeks a new trial on the evidence, and does not appeal on the ground of the insuffi- ciency of the complaint, there, evidence showing a good cause of action under a bad complaint will sustain the judgment. In such a case, where no objection has been taken on the trial to the intro- duction of the evidence, or the variance between the pleading and proof, the court may sustain the judgment by conforming the pleading to the facts proved." [*737] * SECTION VI. FKIVOLOUS DBMUBRER AHD PKACTIOK THBBBON. The Code, as originally passed, contained no provision author- izing judgment on a summary application in case a demurrer was frivolous. Section 247, as amended in 1849, provides as follows : " If a demurrer, answer or reply be frivolous, the party prejudiced thereby, upon a previous notice of five days, may apply to a judge of the court, either in or out of court, for judgment thereon, and judgment may be given accordingly." It will not be necessary or useful here to notice the various decisions made prior to this amendment as affecting and regulat- ing the practice under the original Code.' The amendment itself prescribes specifically and definitely the practice, and points out the remedy. The most serious question likely to arise under the ' section in respect to the demurrer will probably be, What is a frivolous demurrer f By a frivolous demurrer, under the old practice, was meant a demurrer interposed merely for delay, and which had no color or foundation.* There seems, however, to have been a distinction recognized between such a demurrer interposed in bad faith, and one which might, perhaps, [*728] have been put in * with the hope of its proving success- ful, although with no expectation of its deciding the cause. In the former case, that is, when not put in in good faith, the court would not grant the defendant leave even on an affi- davit of merits to plead over. But in the latter case it seems on ' 6 Barb. S. 0. 55. ' 1 Code E. 33, 49, 84, 3 How. Pr 2 Code, § 173, post 803, mwrg. p. 380, 389. " Grah. Pr. 750. 776 DEMTJRKER. [CH. VII. such an affidavit leave miglit be obtained.' This same distinction seems to be recognized by the Code. If it appear tiiat the demurrer was interposed in good faith, the court, in its discre- tion, may allow the party to answer.' Perhaps, therefore, the definition above, that a frivolous demurrer is one interposed merely for delay, is too narrow, for a demurrer under the present, as under the old practice, may be entirely frivolous, that is, without any color or foundation, and yet have been put in not for delay alone, but with some expectation of its success. In such case it would be very properly overruled on summary application under section 24Y, but the defendant, on the proper affidavit, should be allowed to answer. This was intimated in the case of Ajypleby V. Elliins^ where, on ruling a demurrer to be frivolous, [*729] * judgment was directed for defendants, and there being no affidavit of merits, leave to answer was refused ; an answer in such case was allowed in Enos and others v. Thomas and others, at special term.' [The allowance or disallowance of a right to amend on the decision of a demurrer is a matter of discretion for the court,° and an amendment will not be allowed unless the court is satisfied that it was interposed in good faith ; ° if leave to amend has been once given, it will not ordinarily be again granted,' nor will such leave be granted where it is apparent that the party cannot in the end succeed.' On leave to amend, the party can add any thing which would perfect or strengthen the case already made by him, but cannot add a new cause of action or defense." Although the court may grant leave to amend, it cannot compel an amendment."] ' 10 Wend. 623. 1. That the complaint does not show ^ Code, g 172, Enos v. Tlwinaa, 4 that the plaintiflf is the lawful holder How. Pr. 48. of the note on which the action is ^ 3 Sandf . 673. The complaint in brought. 3. It is not averred that the that case was as follows : " That the said note is due. 3. The complaint defendant, on the first of August, 1849, does not state facts sufficient to con- made his promissory note as follows stitiite a cause of action, (setting forth a copy), and delivered '' 4 How, Pr. 48. the same to Noah Ridley (the payee), ^ Lovyry v. Inman, 87 How. 286. who thereupon indorsed the same to ' Osgood v. WUtksey, 10 Ahb. 134, the plaintiff. Tluit the said defendant 20 How. 74. did not pay the same when it became "' Lowry v. Inman, 6 Abb. N. S. 395. due, and that the defendant is indebted ' Snow v. Fourth Nat. Bank, 7 Bob. to the plaintiff upon the same note in 480. the sum of $100, besides interest." » Ficiden v. Oarrelli, 16 Abb. 289, 26 The defendant demurred for the How. 178. following causes ; '" Lord v. Vreeland, 13 Abb. 195. SEC. VI.J FRIVOLOUS, AND PKACTICE THEREON. 777 It was held in a case under the Code, that where a complaint by an indorser of a promissory note alleged that the plaintifl' was the " lawful holder " of the note, and the defendant demurred, alleging for cause that it did not appear from the complaint that the plaintiff was the " owner " of the note, that such a demurrer could not be treated as frivolous.' [But this clearly would not now be considered law, if the plaintiff was the payee named in the note, or facts were alleged which showed title in him.J A demurrer will be regarded as frivolous if it appears to be taken merely for delay, or if the grounds of the demurrer are clearly untenable. Thus it was held at special term, in Howell v. Frazer and others,^ that if a party mistake his remedy and demur when the objection should be taken by motion to make the pleading more certain, the demurrer is frivolous. In that case, the defendant demurred because the complaint alleged that the plaintiff Ijelieved, etc., instead of alleging on his ^formation and 'belief. It was remarked by Justice Mitchell, " If a [*730] pleading is correct in substance, * but not in form, the remedy is not by demurrer, but by a motion to make it more certain or definite, or by some other way than demurrer. Tlie Code never intended that judgment should be given against a party who has merits for a mere matter of form." Nor will a demurrer be overruled as frivolous in a case where the defendant demurs and answers to the same cause of action. In such case the answer cannot be treated as a nuUity, and judg- ment rendered for plaintiff because of the frivolousness of the demurrer. The proper course, it seems, is to move to strike out the demurrer or the answer.' It will be impossible to enumerate the cases in which a demur- rer may be deemed frivolous ; nor, indeed, is it an easy matter to lay down any general rule that will reach every variety of case. A frivolous demurrer is one which, without argument and at first glance, must be pronounced bad. The grounds thereof should be clearly untenable ;" and if the matter is fairly susceptible of argument it should not be treated as a frivolous demurrer. The mere argument of counsel, in opposition, is not sufficient ; there ' Bueh V. Gallup, 2 Code R. 66. * Neefus v. Kloppenburgh, 2 Code » 6 How. Pr. 231, 1 C. R. N. S. 271. 376. ' Spelman v. Weider, 5 How. Pr. 5. 98 778 DEMUREEE. [CH. VII. should be some color or semblance of reality.' The dividing line, however, between a real and a frivolous demurrer, is not by any means clearly defined, and it will, in general, rest much in the discretion of the court whether to entertain the [*731] * motion at chambers and on five days' notice, or whether to put the party to his motion, on regular notice, at the circuit court or special term. This seems now to be really the only practical point of distinction between them ; for as all issues of law are now, by the Code, required to be tried at special term or circuit court, and (unless otherwise ordered) have preference on the calender," there will not in general be much delay in get- ting a decision. Where there are doubts, therefore, as to the frivolousness of the demurrer, it will be always better to notice it in the regular way for the first circuit or special term in the county where the trial is to be had." A motion for judgment, on the ground of the frivolousness of the demurrer, may be made before the expiration of the time to amend, and if an amendment be made, so that the demurrer is no longer frivolous, the motion will be denied without costs.* [It may sometimes be important that a demurrer which has been overruled should, by amendinent of the pleading or otherwise, be removed from the record.' If it remain it will be construed as an admission of the facts alleged in the cause of action or defense demurred to.'] 1 Graham's Pr. 759. ' Brown v. Saratoga B. JR., 18 N. T. 2 Code, § 255. 495 ; Mathews v. Beach, 8 id. 173. » See post, ch. 8, § 2, as to how and « Cutler v. Wright, 22 JST. T. 472, 26 where an issue of law is to be tried. Barb. 208 ; Alderman v. Wrench, 1 * (Jurrie v. Baldwin, 4 Sandf. 690. Pick. 1. [*T32] *CHAPTEE YIII. OF THE ISSUE. The parties having made their various allegations, and an issue being ft5rnied, presenting the points in controversy in the suit, the next consideration "will be as to the mode and manner of disposing of this issue, and as to the legal effect of the matters pleaded, and how they are to be used upon the trial. A full consideration of this subject would involve, to some extent, the subject of practice in courts of law. Keeping m view the object of this work, which has been simply to treat upon the pleadings in an action, as a distinct branch from the practice, I shall not attempt to comment at length upon the mode and manner of conducting the trial of an issue, either of law or of fact, but will barely glance at it for the purpose of enabling the reader more clearly to comprehend the nature of some questions of pleading, growing out of and connected with the issue. The present chapter will be divided into the following sections : 1. Issues of law and of fact. 2. How and where issue to be tried. [*733] *3. Effect of the pleadings, and what facts are deemed admitted on the trial. I 4. Pleadings, how to be construed. 5. Special rules applicable to pleadings. SECTION I. ISSUES OF LAW AND OF FACT. The definition and nature of an issue have not been materially changed by the Code. Blackstone defines an issue to be : " When in the course of pleading they come to a point, which is afiirmed on one side and denied on the other, they are then said to be at issue." ' A broader definition, and one more conformable to the theory of the Code, is given by another writer thus : " An issue is, when both parties join upon somewhat that they refer unto a trial, to make an end of the suit." ' The issue is very accurately defined by Stephens in his treatise on pleading to be : " Some 1 3 Black. Com. 313. = Finch Law, 836. 780 THE I8SUE. [oh. VIII. question, either of fact or law, disputed between the parties, and mutually proposed and accepted by them, as the subject for decision." ' [*734] * The Code defines an issue substantially in the same terms : Sec. 248. Issues arise upon the pleadings, when a fact or conclu- sion of law is maintained by the one party and controverted by the other. They are of two kinds : 1. Of law ; and 2. Of fact. It is obvious that the object of all pleading is the production of an issue — that which, in the language of the Code, is "main- tained by one party and controverted by the other." The con- troversy between the parties is to be narrowed down to the exact points in dispute, and these are to be referred to the proper tri- bunal for decision. The pleading is the record of these allegations to enable the tribunal before which the issue is tried to understand and determine the precise points in controversy. There is no difference in this respect between pleadings at law and in equity. Both are designed " to bring the matters in controversy between the parties who are interested therein, before the tribunal by which they are to be adjudicated." " Under the Code, as at common law, issues are of two kinds, of law and of fact. They are thus defined : Sec. 249. An issue of law arises 1. Upon a demurrer to the complaint, answer, or reply, or to some part thereof. Sec. 250. An issue of fact arises : [*735] * 1. Upon a material allegation in the complaint, contro- verted by the answer ; or 2. Upon new master in the answer, controverted by the reply; or 3. Upon new matter in the reply, except an issue of law is joined thereon. It will thus be seen that an issue of law arises wholly on a demurrer, that is, where the party taking such an objection admits the allegations set forth in the pleading of the opposite party to be true, but claims that the allegations do not disclose such a case on the merits as constitutes a good cause of action or defense. Tliis issue so raised is wholly a question of law to be > Steph. on PI. 134. » Story's Eq. PI., § 1. SEC. I.J OF LAW AND OF FACT. 781 tried by the court. An issue of fact, on the contrary, arises on the denial by either party of the allegations in a pleading. The alle- gation denied or controverted, in order to produce such an issue as is contemplated by the Code, must be a " material allegation," ' that is, as I understand it, not an allegation which, if disproved, would be entirely decisive of the whole issue, but an allegation material to the speciiic relief sought, whether in the enforcement or protection of a right, or the redress or prevention of a wrong, and material to the judgment which the court is to pro- [*736] nounce upon proof of the facts, or such of them as *entitle the party to judgment. This issue so raised is triable by a jury, or in certain cases, by the court sitting as a jury, or by referees. The Code provides further : that " Issues, both of law and of fact, may arise upon different parts of the pleadings in the same action. In such cases the issues of law must be first tried, unless the court otherwise direct.'"' The words in italics in the above section were not in the original Code, and were inserted by the amendments of 1849. It has been repeatedly decided since that amendment, and it is believed the practice is now well settled, that a party cannot [demur to and answer the same cause of action or defense]. Nor can he demur to part of one entire cause of action and answer the residue.' In Spelman v. AWeider^ Justice Willaed, in such a case, refused to treat the answer as a nullity and to render judgment on the demurrer as frivolous, holding the proper remedy of the party to be to move to strike out one of the pleadings, and to compel the opposite party to elect by which issue he would abide. If it be thus necessary that a separate issue of law or of fact be raised on each distinct cause of action or of defense, and that a demurrer and answer cannot both be interposed to the same allegations, so too must an issue of law or of fact be joined [*Y3Y] upon an entire cause of action or defense. Mere statements *and allegations which do not of themselves constitute one 'Section 250, Code, sub. 1. The as is " material " to the nature of the second and third subdivisions of the relief sought or the defense interposed, section, defining how an issue is raised [See Pardee v. Schenck, 11 How. 500 ] on " new matter " in the answer or ^ Code, § 251. reply, omits the word " material." It ^ Inrjraliam, v. Baldman' 12 Barb. 10 cannot be doubted, however, that the * 4 How. 373, 8 Code R. 59, 5 How ' new matter " spoken of is such only 5, id. 206. 782 THE ISSUE. [CH. VIII. entire ground of action or defense, cannot be demurred to. 'No issue is formed by such a demurrer capable of trial, and the party aggrieved may move to strike them out.' Issue must he single. — It is laid down in the books on plead- ing that an issue should be single, certain and material^ By single is not meant that only one point is to be presented for trial, or one question to decide the action. Even under the old system of pleading at law this was not the case.'' It was found that some controversies might admit of many questions arising on the pleadings, or distinct issues, as, for example, where several distinct causes of action were united in the same declaration, or several pleas pleaded to the same claim. The determination of the whole matter in controversy necessarily required that all these several issues should be decided. Under the old common-law pleadings it was said that in the case of several claims united in the same declaration, the issues raised on each claim should all be decided, but that in case of a single claim the same consideration did not apply, for the decision of any one of the material issues that may arise upon it will be sufficient to dispose of the entire claim.* This doctrine is not entirely applicable to the [*'738] Code, which provides that " the * defendant may set forth as many defenses as he shall have," etc. Thus, to a con- tract, he may plead the statute of limitations, infancy, duress, etc., and raise several distinct issues, the determination of one of which adversely to the defendant does not necessarily decide the action. All that is meant now by the rule that the issue must be single, is, that upon a single claim, as for damages or the recovery of specific real or personal property, each matter of defense set forth shall, in the language of the Code, be " separately stated," and that each of such separate matters of defense to each single claim alleged shall present an issuable point, capable of being tried. An answer, under the Code, does not contain a double defense because it denies two facts, both of which are necessary to make out a good cause of action." Miist he rcrfniii. — The issue was also required to be certain. ' 4 How. 413 ; 3 id. 410. " Stepli. on PI. 131. 2 Steph. PI. 135, 1 Chit. PI. 652. " Otu v. Ross, 8 How. Pr. 193. 8 3 Caines, 163, 1 Burr. 310, 8 Wend. 129, 2 Johns. 462, 3 Cow. 303, 6 id. 45. SEC. I.J OF LAW AND OP TACT. 783 By this is meant that the issue must be particular or specific, as opposed to undue generalit)'. It was considered one of the essen- tial qualities of the issue that it should be certain.' A material and traversable fact must in general be expressly stated, and cannot be inferred from other parts of the pleading." So, too, certaiiity in the issue required a certain time and place to be stated to every material and traversable fact. This, however, is now mere [*739] matter of form, unless, in those * cases where time and place enter into the substance of the contract, and must be proved to sustain the action ; or are necessary to apprise the opposite party of the precise nature and extent of the claim relied on. So, too, the pleadings were required to specify quan- tity, quality, and value,' in order to effect this certainty in the issue, which the artificial rules of pleading at common law required. 'The certainty required in the pleadings was what was called certainty to a common intent,* that is, what, on a fair and reasonable construction, may be called certain, without recurring to possible facts,' or, to adopt a former definition of the Code, the facts must be stated in such a manner as " to enable a person of common imderstanding to know what is intended." Must ie material. — But the essential point in the issue was, and under our new system of pleading still is, that it should be material. The pleadings are, therefore, required to state material and issuable facts. No allegations, except such as may be tra- versed and as may properly be put in issue and tried, can be inserted. Or, if such allegations are inserted, they may be entirely disregarded. A neglect to answer them cannot in any way prejudice the other party ; for it is only every material alle- gation in the complaint, etc., which is to be taken as true unless denied. [*74:0] * A demurrer admits only the facts stated in the complaint which are material to the action, relevant and well pleaded, and does not admit conclusions or inferences of law.' In analogy with this rule it has been laid down that such conclu- fiions and inferences, as well as all other matter not material to ' Steph. on PI. 133. ' 9 Johns. 814, 19 -A. 349. ' 7 Johns. 75. « 9 Barb. S. C. 301, Story's Eq. PI., ' Steph. on PI. 295. § 453. ■• 4 Barb. 596. 784 THE ISSUE. [oh. VIII. the issue, should not be controverted or denied by the pleader ; but that they should be entirely disregarded unless a motion is made to strike them out as irrelevant or redundant.' An immaterial issue, as contradistinguished from a material issue, is defined to be an issue " unfit to decide the action," ^ one that " will not determine the merits of the cause," ' " a point not decisive of the right of the case." * It has been thought that this rule cannot be applied to an action for equitable relief, but is merely an incident of the mode of trial in common-law actions.' A " material issue," in the common-law sense, being defined an issue decisive of the whole case; in an equity sense, an issue upon a fact which has some bearing upon the equity sought to be established. It is unnecessary to repeat here what was said in the first chapter of this work ' relative to this distinction — a distinction which it is believed cannot [*741] be sustained in practice or upon principle. * If the facts spoken of in the case referred to as having " some bearing upon the equity sought to be established " are not mere matters of evidence, but such as are or may become material to the particular relief asked, then they are such facts as can prop- erly be put in issue and tried. And although the determination of one of such facts may not be decisive of the whole case, yet if such determination will have an essential bearing upon the relief demanded, and will materially affect the judgment to be rendered, an issue joined upon such fact cannot certainly be called immaterial. In Stafford v. Mayor of Albany,' the court defined an imma- terial issue to be " where that which is materially alleged by the pleading is not traversed, but an issue is taken on such a point as will not determine the merits of the action." The court can render no judgment on a verdict on s\ich an issue, unless, indeed, in those cases where the defect is not in substance, but merely in the form or manner of statement, and which is cured by the verdict.' Thus, in Swift v. Yaughn' the plea that defendant did not 1 See Bedell v. Stickels, 4 How. Pr. » Wooden, v. Waffle, 6 How. Pr. 151. 432. ^ See ante, p. 69, et seg., marg. p. ' Steph. on PI. 139. ■" G Jolins. 1. 2 1 Chit. PI. 093. 8 And see post, § 5 of this chapter. *aould'sPl.,ch. G, §27. 9 Q Hill, 488. SEC. I.] OF LAW AND OF TACT. 785 undertake and promise, within six years next before the exhibiting of the Mil, was held to raise an immaterial issue. The plea should have denied that the defendant undertook and promised within six years next befors the commeHoement of the suit. [*742] An example of a similar immaterial issue * is given in the ease of Mallory v. Lartvphear, ' under the Code, where, in an action on a due bill, payable immediately, the defendant in his answer admitted making the bill, but set up as new matter that it was not made within six years before the commencement of the action. This was held to raise an immaterial issue. The time when the note took effect as an obligation, by delivery, not the time when it was made, should have been put in issue. A variety of other cases, both before and since the Code, might be cited in illustration of the nature and character of these imma- terial issues, but this can scarcely be necessary. It will be suffi- cient to add here that an immaterial issiie is raised, not only when a material allegation in the complaint is not suffioiently denied, or when an immaterial allegation, that is, an allegation not con- stitutive of a cause of action, is put in issue, but also in all cases when an answer consists of facts or allegations which do not con- stitute a defense!' Let us now briefly consider how an imma- terial issue, when it arises on the pleadings, is to be disposed ©f. The old practice at common law was, where an immaterial issue was formed, the court ordered the parties to plead anew for the purpose of obtaining a better issue. This was called a repleader.^ It was only done where it appeared that the PYiS] matter, *if well pleaded, would be a good defense, and not in those cases where it appeared that such matter could never be made good by any sort of plea.* If the defect is in the form or manner of statement, and issue is taken in it, and such an immaterial issue is tried, there a repleader is proper ; but if defective in substance, and the court can see that in any way of putting it the party can have no merits, and the issue joined thereon be found for him, the court will not grant a repleader, but give judgment notwithstanding the verdict.' A repleader is • 8 How. Pr. 491. " Bouv. Law Diet., title. Repleader « See Lane v. Gilbert, 9 How. 150, for * 1 Burr. Pr. 301. an example of this kind of immaterial ' Otis v. Hitclicoek, 6 Wend. 433. issue. 99 786 THE ISSUE. [CH. VIII. always awarded on the form and manner of pleading, and not on the merits.' How applicahle to the Code — The principles are not entirely inapplicable to pleadings and practice under the Code. The ques- tion may .arise, liow is an immaterial issue to be disposed of? Doubtless, the court, as under the old practice, if the defect be not in the form or manner of the statement, but such as to render it apparent that no manner of setting forth the matter will avail to raise a material issue, may render judgment, and even if an issue be joined, and found for the defendant, the court may render judgment against him notwithstanding the verdict. If such immaterial issue is raised on an answer, setting up facts which coTistitute no defense, the court may disregard the answer [*74:4:] entirely on the trial, and direct the jury to assess * the damages ; '^ or, if a verdict be rendered for defendant, may direct judgment for the plaintiif, as in case of judgment non obstante ijeredicto.^ Where tlie complaint does not state facts sufficient to constitute a cause of action, and a general or specific denial is interposed, the issue is clearly immaterial. Such an issue is incapable of being tried. The plaintiff can give no evidence of any material fact not alleged in his complaint ; in other words, he cannot prove a good cause of action under a complaint con- taining none.'' The Code itself provides that a neglect to demur to such a complaint does not remedy the defect ; ° a verdict or report of referees and judgment will not cure such an immaterial issue. The defendant miglit move in arrest of judgment, or, fail- ing to do that, appeal from the judgment." It is said by Justice Baeculo, in Fox v. Hunt,^ to be the cor- rect practice at the circuit to lay out of the case all the irrelevant allegations, as well as the immaterial issues, contained in the pleadings, and hold the parties to trial upon the material issues or points in the case. This has been fully approved by sub- [*745] sequent decisions; ° and the same rule of * practice is laid down by the court of appeals, in the case of Corning v. ' BellimB V. Shannon, 3 Hill, 86. « Rin/ncr v. Clark, 7 Barb. 581 ; « Fox V. Hunt, 8 How. Pr. 12. Wo.voiiv. Bentlcy, 7 How. Pr. 316. ^Mallory^. LiimplienrMimv. Pr.49]. ' 8 How. Pr. 13. * Bristol V. Viui. liciisselaer cf- Sara- ^ nic/itmci/cr v. f/oxkina, 9 How. Pr. toga Riiilroad do., HmvIi. 150. 481 ; .Ui/itU v. Kumtoga Mutual Ins. 6 Am. Code, t; 14S. Co.,id.4S8 ; H7W.«v. Fm-esi,2'Daer,S10. SEC. I.J OP LAW AND OF FACT. 787 Corning,^ namely, that the circuit judge is not bound to try, or receive evidence in support of, an immaterial issue, even though it has not been struck out, but still remains upon the record. The objection to such an issue may be taken at any stage of the pro- ceedings, either at the special term by motion, or on the trial at circuit, or by motion in arrest of judgment," and even upon appeal. It has been held, since the Code,^ that where a good cause of actioa has been established by proof, without objection under such an issue, there the defendant lost his right on a case made to review the evidence and on motion for a new trial, to raise an objection to the sufficiency of the complaint.* [*746] * The rule in equity was, that if the plaintitf made out a good case in evidence, but diiferent from the case stated in his bill, the cause would be dismissed at the hearing.' And our courts of law and equity have constantly acted upon the same doctrine. Thus, in the late case of Field v. Mayor, etc., of New Yorh," in the court of appeals, it was ruled that facts proved but not pleaded are not available to the party for any purpose ; and in Bailey v. Ryder, that no decree can be made in favor of a complaint on grounds not stated in his bill. In the latter case, U was decided that the absence of allegations of fraud in a plead- ing in equity precluded all proof of that nature. The same rule was applicable to admiralty pleadings, founded upon the liberal principles of the civil law. [*747] * If the information or libel is defective, the defect is not cured by evidence of the material facts omitted to be averred ; and the objection may be taken even on appeal, though not raised on the trial." The maxim, that the decree must be secundum allegata as well as secundum probata, says Chief Justice Marshall, is " essential to the due administration of justice in ' 3 Seia. 97. <■ 3 Seld. 179 ; [Wright v. Delafield. ' Burnham v. De Bewrse et al., 8 35 N. Y. 366 ; Borne Exchange Bank v. How. 159 ; Noxon v. Bentley, 7 id. 316. Eames, 1 Keyes, 588 ; Tell v. Beyer, 38 2 Oarky v, Wilkins, 6 Barb. 557. N. Y. 161 ; Paige v. Willett, 38 id. 38 ; * [Behlassel v. Willett, 34 Barb. 615 ; Durand v. Hankerson, 89 id. 387 ; AMey v. Marshall, 39 N. Y. 494 ; AnaUe v. Oonklin, 35 id. 470 ; Camp- Beiknap v. Sealcy, 14 id. 143 ; N. Y. bell v. Gonsalus, 35 id. 613, ante, 473, Cent. Ins. Co. v. Nat. Prot. Ins. Co., 14 marg. p.']. id. 86 : Wood v. Wood, 36 Barb. 359 ; ' Court of Appeals, Dec. 3, 1853. Stiekney v. Blair, 50 id. 343, ante, 473, ^ 8ehooner Hoppet v. United States, 7 marg.p.'\. Crancli, 389. 6 Lube's Eq. PL 19. 788 THE ISSUE. [CH. VIII. all courts." The rule is founded in sound reason and good sense and is no doubt fully applicable to our present system of pleadings. It is presumed that under the present system the practice of granting a repleader in cases of an immaterial issue no longer exists. Where the issue is fatally defective and cannot be cured by amendment, the court, as under the old system, can effectually dispose of the question. In cases where, under the old practice, a repleader would have been proper after verdict, for some defec- tive manner of statement, the same thing can now be aecoinplished by amendment,' the Code providing for amendments before or after judgment, by inserting other allegations material to the case, or by conforming the pleading or proceeding to the facts proved " [*748] *SECTIO]Sr II. ISSUES, HOW AND WHEKB TKIED. It remains briefly to consider how and where the issues in an action are to be tried, and first : Issues, how tried. — A trial is defined by the Code to be " the judicial examination of the issues between the parties, whether they be issues of law or of fact." ° In regard to the mode of trial, it is provided, as the Code now stands, that " All issues of fact, triable by a jury, or by the court, must be tried before a single judge. Issues of fact in the supreme court must be tried at a circuit court when the trial is by jury; otherwise at a cir- cuit court or special term, as the court may by its rules prescribe. Issues of law must be tried at a circuit court or special term, and shall, unless the court otherwise direct, have preference on the calendar." * [On demurrer to one of several defenses in an answer, it has been held that the plaintiff might notice the issues of fact for trial," but this we doubt, as, on disposing of the issues of law, another trial might be necessary.] The Code provides three modes of trial — Ijy jury, by the court, and by referees. An issue of law is to be tried at a circuit court ' Corning v. Corning, 1 Code R. N. ^ Code, § 253 ; see Dodge v. Curry, 4 S.351. How. 133. •> Code, § 173, 7 Barb. S. C. 13. " Sec. 255. ^ Palmer v. Smedley, 13 Abb. 1S5. SEC. II.] HOW AND WHERE TEIED. 789 or special term, and by the court. It is not a projjer subject for a trial b'y jury. It may, however, by consent of parties be referred.' Issues of fact are to be tried in one of three ways above men- tioned. [*749] * It has been a question how far the Code has reaUy effected an uniformity of trial of issues of fact in all cases, and whether a distinction is not still recognized between the trial of cases for legal, and those for equitable relief. So far as the trial by the court or by referees is concerned, the mode of trial is equally applicable to both classes of cases. It is provided by the new constitution that " testimony in equity cases shall be taken in like manner as in cases at law," ^ that is orally, in open court, or before a referee when the issue is referred. So far, therefore, as issues of law are concerned, and trials of issues of fact before the court, or before referees, there is nothing to prevent the attainment of a perfect uniformity in the mode of trial, as well as in the other proceedings in the action. But it has been supposed that there is a difference in respect to trials of issues of fact before a jury, and that an uniform mode of trial has not really been provided by the Code.' If this be so, it is certainly the reverse of what the commissioners intended. In their remarks on the title relative to " Trial and judgment in civil actions," they state very explicitly, that a main object has been to attain this uniformity of trial, and further express the opinio*, that there is nothing either in the nature of equity cases, the number and variety of the questions raised in them, or [*750] the form of the pleadings, * which renders them unfitted to be tried by a jury.* The design seems to have been, however, to limit the trial and decision of equity cases, or per- haps more properly speaking, of all cases other than those which the constitution expressly declared should be triable by jury," ' Code, § 270. ties in all civil cases, in the manner to " Art 6, § 10. be prescribed by law." The cases in ' See 4 How. Pr. 423, 3 C. R. 49, 5 wliicli it has been heretofore used are How. 216, 9 Barb. 633, 4 Sandf. 653. cases at common-law, claiming com- ■* First Rep. Com., pp. 176 to 181. pensation in damages, or recovery of ' Art. 1, § 2, Constitution provides specific real or personal property. "the trial by jury in all cases in Except that a reference might be which it has been heretofore used ordered when the trial would require shall remain inviolate forever. But a the examination of a long account. jury trial may be waived by the par- 790 THE ISSUE. [CH. VIII. mainly to the court and to referees. Accordingly, they provided first for the trial by jury of that class of cases indicated by the constitution, namely, for the recovery of money damages or specific real or personal projaerty. The section, as amended in 1849, to include divorce for adultery, is as follows : " An issue of law must be tried by the court, unless it be referred, as provided in sections 370 and 271. An issue of fact, in an action for the recovery of money only, or of specific real or personal prop- erty, or for a divorce from the marriage contract on the ground of adultery, must be tried by a jury, unless a jury trial be waived, as provided in section 265, or a reference be ordered, as provided in sections 270 and 371." ' [*751] * The " specific real or personal property " mentioned in the above section as a claim properly triable by jury, has reference only to actions for the recovery of chattels, equiva- lent to the old action of replevin, or the recovevj of the posses- sion of real estate, as in the action of ejectment, and does not relate to claims in equity.^ The Code, therefore, gives the party a right to his trial by jury only in those cases where it was pre- viously guaranteed by the constitution, and in the case of a divorce from marriage on the ground of adultery. The revisers, however, evidently contemplated extending, rather than restrict- ing, the trial by jury, and of making it equally applicable to all classes of cases, whether legal or equitable. Accordingly the court is clothed with power to order the whole, or a part of any issue to be tried by jury. Every other issue is triable by the court, which, however, may order the whole issue, or any speciilc question of fact involved therein, to be tried by a jurv; or may refer it as provided in sections 370 and 271.' If any such distinction therefore exists, as to the mode of trial, or the forum before which the trial shall be had, between claims for legal and equitable relief, as is supposed in Sill v. MoCarty,' ' Code, § 253. Section 370, above and 3d. Where a question of fact referred to, provides for the reference arises in the action otherwise than of any issue by consent of parties, upon the pleadings. The court has Section 271 for a reference. 1st. Where no power to order a reference in any the trial shall require the examination other cases. of a long account; 3d. Where the tak- ' Galloon v. Bank of Utica, 4 How. ing of an account, or the proof of any Pr. 433. fact is necessary before judgment or ^ Code, § 354. for carrying the j udgment into eifect ; * 3 Code R. 49. iEC. II.J HOW ANJJ WMEUE TltlED. 791 and ill Crary v. Goodrnan^ it is a distinction resting [*'r52] entirely with the court to preserve or abolish.'' * The court may order " the whole issue " (in every case) to be tried by a jury, and certainly, in such case, the mode of trial will be uniform, as the rest of the proceedings, and the pleadings are required to be, in all classes of cases. The constitution requires certain cases to be tried by a jury — that is, cases at common law. The legislature could not repeal this provision. The Code, with- out expressly requiring equity cases to be tried the same way, except in an action for divorce for adultery, provides that they may be so tried in the discretion of the court. In order to carry this object into effect the court by its general rules provides that where either party to such an issue desires a trial by jury he may, within ten days after issue joined, give notice of a motion to set- tle the issues, and such issues are to be settled in the form pre- scribed in section 72 of the Code.' 3cZ. Issues, where tried. — The Code has made specific pro- visions respecting the place of the trial of civil actions, and under these provisions a variety of decisions have been made .which regard mainly the practice of the court in changing the venue as it was called, or place of trial. At common law, the venue was either local or transitory. If local, it must be laid in the county, and the cause tried in the county where the cause of action arose. If transitory, it could be laid in any county, and the cause of action tried in such [*Y63] county, subject, however, to its being changed by the court, in some cases, if not laid in the county where the cause of action really arose.' It is perhaps unnecessary, under our system, to inquire in what cases at common law or under the Eevised Statutes,' an action was said to be local, and in what eases transitory. A party is not at liberty now to lay his venue in any county he may choose to designate in the complaint, even in a transitory action, except in the single case of all the parties being non-residents." The following actions, by section 123 of the Code, must be ' 9 Barb, S. C. 663. cited in notes to this rule, Wait's Code 2 Per Pabkbe, J., Soutlmortn v. p. 839; Colie v. Tift, 47 N. Y. 119. Curtis, 6 How. Pr. 271. * 1 Ohit. PI. 267, 2 Saund. 74. 3 Kules Sup. Court, 40. See cases ' See 2 R. S. 409, 2 Bdm. St. 426. « Code, § 125. 792 THE ISSUE. [OH. VIII. tried in the county in which the subject of the action, or some part thereof, is situated, subject to the power of the court to change the place of trial in the cases provided by statute. 1. For the recovery of real property, or of an estate or interest therein, or for the determination in any form of such right or interest, and for injuries to real property. 2. For the partition of real property. 3. For the foreclosure of a mortgage of real property. 4. For the recovery of personal property distrained for any cause. [The pleader must name the place of trial in the proper county or subject himself to a motion to change it. An action to restrain a threatened injury to real estate is local.' So to have a convey- ance of real estate declared invalid or declared a mortgage.' An action by the officers of a county or town against officers of another county or town, in another county, cannot be brought in either county, but must be brought in some other county adjoin- ing that of the defendants." An action against a national bant must be brought in the county where the association is established.'] The following actions, by section 124, must be tried in the county where the cause, or some part thereof, arose, subject to the like power of the court to change the place of trial in the cases provided by statute. [*754] 1. For the recovery of a penalty or forfeiture imposed by statute, escept that when it is imposed for an offense com- mitted on a lake, river or other stream of water, situated in two or more counties, the action may be brought in any county bordering on such lake, river or stream, and opposite to the place where the offense was committed. 2. Against a public officer or person specially appointed to exe- cute his duties, for an act done by him in virtue of his office, or against a person who, by his command or in his aid, shall do any thing touching the duties of such officer. And by section 125 : In all other cases the action shall be tried in the county in which the parties, or any of them, shall reside at the commencement of the action; or, if none of the parties shall reside in the State, the same may be tried in any county which the plaintiff shall designate I Leland v. Hatlwrn, 43 N. Y. 547, » 3 K. S. 353, § 14, as amended by 9 Abb. N. S. 97. Laws 1843, p. 357, 3 Edm. St. 365 ; '' Bush V. Treadwell, 11 Abb. N. S. Lapham v. Rice, 63 Barb. 485. 37. See Ely v. Lowenstein, 9 id. 43 ; •'13 U. S. Stat, at Large, 116, § 57, Huhliell V. Sibley, 4 id 408 ; and cases 3 Bright. Dig. 71, § 60 ; Orocker v. cited in Wait's & Voorhies' Code, § 133. Marine, etc., 101 Mass. 340. 8KC. 1 1. J HOW AND WHERE TKIED. 793 in his complaint; subject, however, to tlie power of the court to change the place of trial in the cases proYided by statute.' It was held in an early case under the new practice," that a judgment on failure to answer was a trial within the meaning of the Code, and that the application for judgment must be made in the county designated in the complaint as the place of trial. The supreme court, since that case, by its general rules, per- [*755] mits an application for judgment on default * to be made in any county of the disti'ict, embracing the county in which the action is triable, or in an adjoining county ; such appli- cation to be made at any special term, and also at a circuit court in the county where the action is triable. But when a reference or writ of inquiry shall be ordered, the same shall be executed in the county in ^vhich the action is triable.^ This seems to be regarded as simply a question of practice, within the power of the supreme court to change, alter or modify by its general rules, and I believe it has not been doubted that it is competent for the court to establish such a rule, notwithstanding the decision above referred to. A trial, according to Mr. Justice Geidlet, is a final disposition of the cause, and does not require an actual "judicial examina- tion of the issues." Therefore, when the plaintiiF fails to appear on the calling of a cause, and the complaint is dismissed, it is equivalent to a " trial." * The examination of an issue of law as well as of fact is also a " trial." It is so expressly defined by the Code : " §252. Atrial is the judicial examin ation of the issues between the parties, whether they be issues of law or of fact.' This section was struck out by the amendments of 1851 ; issues of law were made triable at the general term, and of [*756] course the provisions of the Code respecting *the place ' The first two sections above quoted county, wliicli section was subse- are similar to the provisions of the quently, the same year, repealed. Revised Statutes (3d ed., p. 506), rela- - Warner v. Kenny, i How. Pr. 323. tive to the venue in civil actions. The See also anonymous case, 1 Code, 82 ; last section may be said to be new, Roberts v. Morrison, 7 How. Pr. 396. though similar to the 46th section of ^ Supreme Court Rules, 33. the judiciary act of 1847, requiring the * Docld v. Curry, 4 How. 123. venue to be laid in a county where one ^ Original Code, § 207. of the parties resided, or an adjoining * Phire v. Butternuts, etc., 38 How. 184. 100 794 TUB ISSUE. [oh. VIII. of trial, had no fartlier reference to suck issues. But the section has been restored by the late amendments, and the ques- tion occurs, whether the provisions of the Code respecting the place of trial are to be literally construed as intending to embrace both kind of issues. In analogy to other proceedings under the Code, and with reference to the general uniformity of the system, I should not hesitate, if this were an original question, to answer it in the aflSrmative. There are, however, contrary decisions. In the case of Gould v. Chapin,^ it was said that there is no statute under which courts could order an issue of law to be tried out of the county specified in the complaint ; and the cause must for this purpose be triable m the district where the venue is. This dictum was followed by Mr. Justice Willaed in a case arising before the amendments of 1851 ' and which directly involved the question. That able jurist, whose opinions in every case are certainly entitled to the highest respect, held that title four of part second of the Code, relative to the place of trial of civil actions, related exclusively to issues of fact, notwithstanding the definition of the Code that the determination of an issue of law is also a " trial." He was of the opinion that the argument of a demur- rer might be brought on at any special term in the district, [*75T] or a county in another district adjoining * the county mentioned in the complaint. The author is not aware that this practice is now pursued, or that it has received the sanction of any other judge. In Bently v. Jones^ it was held that the decision upon a demurrer was not an order but a judg- ment. This was a decision at general term." The same doctrine was held at a general term in the fourth district, in the case of Mitchell V. Weed ; ° and this, too, where the demurrer was over- ruled by a judge at chambers as frivolous ; and in Roberts v. Morrison^ at the New York special term, it was expressly ' 4 How. Pr. 188 ; Monroe special also, Rae, v. WaaMngton Mut. Ins. Co., term, Dec, 1849. 6 id. 21. = Ward V. Davis, 6 Pr. 374, Fulton " 7 How. Pr. 369. In Warner v. special term. Kenny, 1 Code R. 96, it was held that 2 4 How. Pr. 335. the mere rendering of judgment in * See, also. King v. Stafford, 5 How. case of default, where no issue had Pr. 30 ; and Wood v. Lar&ert, 3 Sandf . been joined, was " a trial," within the 734. meaning of the Code, suiHcient to fix ' 6 How. Pr. 137 ; S. C, 5 id. 30. See, the place where such judgment must be rendered. SEC. II.J HOW AND WHEEE TEIED. 795 decided that a motion for judgment on account of the frivolous- ness of a demnrrer is the trial of an issue of law. The New York superior court, on consultation of all the judges, in DruTn- mond v. Uusson,' laid down a general rule on this subject as follows : That the decision upon a demurrer is in the nature of a judgment^ where the demurrer goes to an entire pleading / but if it is partial only, the decision, sustaining or overruling it, is an order ; in the latter case, of course, the motion is not a trial of an issue. But in the recently reported case of Nolton v. [*Y58] The Western''' Railroad Corporation^ at a general term in the third district, this distinction was thought not well taken, and that, for the purposes of an appeal, a decision, sustain- ing or overruling a demurrer, was in all oases an order.' These decisions are important in this connection only so far as they bear upon the question, whether the hearing and decision of a demur- rer is a trial or not within the meaning of the section of the Code regulating the place of trial. The case last cited appears to sus- tain the conclusion of Judge "Willasd, in ^Yard v. Davis, that the argument of a demurrer is not a trial of an issue, within the meaning of that section, the decision being a mere order granted upon a motion. The majority of the cases, however, seem to regard it in a different light, and the more safe practice, at all events, is, since the late amendments have restored section 252 of the Code, defining what a trial is, to consider the " place of trial " as equally applicable to the decision of issues of law and of fact. Such issues, therefore, should be brought to trial at a circuit court or special term, in the county designated in the complaint, unless the place of trial be changed by order of the court." ' 1 Duer, 633. the modification, that where leave to ' 10 How. Pr. 97. See, also. Bey- amend is given on the decision of the ! V, Freeman, 4 Sandf. 703. demurrer, such decision is an order for 2 The general term in the seventh the purpose of appeal, though the district, in the subsequently reported demurrer goes to the entire pleading, cases of Ba^tman v. JYew York Central If no leam to amend is given, it is a Railroad Co., 10 How. 218, and Coolc v. judgment. Pomeroy, 10 id. 321, have followed ^ Code, § 126. the rule in Drummond v. Huason, with 796 THE ISSUE. [CH. VIII. [♦TOQ] * SECTION III. BPPBCT OP THE PLEADINGS AND WHAT PACTS DEEMED ADMITTED ON THE TBIAIi. It was a general rule under the former practice, both at common law and in equity, that material allegations of fact in a pleading, which werp not denied by the plea or answer were, for the pur- poses of a suit, deemed to be admitted. The pleader confesses the fact which he does not expressly deny.' The Code has adopted substantially the same rule as respects the complaint and the counter-claim set up by the defendant. Section 168 reads as follows : " Every material allegation of the complaint, not controverted by the aaswer, as presci'ibed in section 149, and every material allega- tion of new matter in the answer constituting a counter-claim, not controverted by the reply as prescribed in section 153, shall, for the purposes of the action, be taken as true. But the allegation of new matter in the answer not relating to a counter-claim, or of new matter in a reply, is to be deemed controverted by the adverse party as upon a direct denial or avoidance, as the case may require." The allegations of the pleadings, within the meaning [*760] of this section, are evidently allegations of fact. * This was adjudicated in a very early case under the Code, and has not been questioned. Justice BAEoaLo, in the case referred to," held that the statute did not extend so far as to embrace aver- ments of the intention with which a party had executed a written instrument,' and, in his opinion on this point, observes ; " This statute miist be confined to allegations of fact, and cannot refer to an averment of the legal construction, or effect, of written instru- ments; much less can it be applied to the intention or mean- ing of parties when they execute a written contract. To adopt ' 8 Wond. 448, 14 id. 507, 8 Paige, 68. prosecution, etc. ; also in equity cases, * Barton v. Saeliett aiid others, 3 How. as, for example, to correct a mistake in Pr. 358, 1 Code E. 96, Dutchess special a deed or other written instrument. In special term, Dec, 1848. such cases it becomes material to al- ^ It is evident, however, that there lege the intention of the party as the are a great . variety of cases in which very fact to he put in issue. The re- the intention of the party is the very marks in the text are not intended to question of fact upon which the action apply to cases of this description, rests, as in cases of fraud, malicious SEC III.] EFFECT OP PLEADINGS. 797 the construction claimed by the defendant's counsel would be to subvert not only the rules of pleading, biit the plainest princi- ples of justice. Instead of determining what the parties did, we should spend our time in the vain attempt of endeavoring to ascertain what they intended to do." There can be no doubt of the entire correctness of these views, and they may be very safely applied to all mere inferences, conclusions of law, matters of evidence, etc., etc., set up in the pleadings, and which, not being allegations of fact, need not be answered. So, too, the [*761] mere claim * of a party, in his demand for relief, consti- tutes no portion of the complaint, and requires no reply, because no issue can be taken on it.' Not only must the allegations be allegations of fact, within the meaning of the section under consideration, but they must be material allegations. It is only every material allegation that is required to be controverted, or that falls with the provision of section 168.'' No allegation in a complaint or answer can be deemed material, within the meaning of the section, unless an issue can be taken upon it. Thus, in the cases above mentioned, as to the intention of parties, and the legal construction of written instru- ments, the prayer for relief, mere matters of evidence, expressions of opinion, redundancy ^and irrelevancy, and generally every thing stated in the pleadings other than the naked facts on which the party's right of action depends, or which he must prove to establish his counter-claim.^ Every matter which must or which may be alleged in the complaint, or the counter-claim, in order to protect it from demurrer for insufficiency, must also be traversed if the party pleading intend to controvert it on the trial. Every thing else may be considered immaterial within the meaning of this section, and an omission to answer it will not be a [*762] confession of * its truth.* Indeed, the court seem to have gone farther than this, and to hold the doctrine that aver- ments properly in the pleadings are not to be deemed admitted on the trial for want of an answer, unless they are such as on an issue taken upon them, whether of law or fact, will decide the case, so far as it relates to the particular cause of action to which it ' Averill v. Taylor, 5 How. Pr. 476, * Harlow v. Hamilton, 6 How. Pr. and cases cited, ante, pp. .363, 369. 475 ; and see, also, 6 Barb. S. C. 145, 7 2 6 Barb. S. 0. 145, 6 How. Pr. 475. L. O. 340. ^ Isham V. Williamson,7 Leg. Obs. 340. 798 THE ISSUE. [CH. Vllt. refers. This was held in the superior court of New York, with the concurrence of all the justices, in the case of Newma'w v. Otto? In reference to the word " material," as used in section 168, the court remarks, that as the Code has not defined its meaning, it must of course be understood in its old and established sense ; and, therefore, that no allegation can be deemed material unless an issue taken upon it will decide the cause so far as relates to the f articular cause of action to which the allegation refers. Facts pleaded in mitigation of damages in an action for libel were held not to be material within this definition. So, too, matter in aggra- vation of damages when properly set forth in the complaint. An omission to deny such matter, is not tantamount to a confession thereof on the trial, but in all cases the party pleading it will be put to his proof [In an action sounding in damages, the defendant, by not deny- ing the allegations as to damages and as to their amount, does not admit them. The plaintiif must prove the amount thereof or he will only be entitled to nominal damages ; " so in trover a failure to deny the allegations as to the value of the property does not admit the value as alleged in the complaint.'] In an action for the conversion of personal property, an answer which denies each and every allegation in the complaint, [*Y63] is a denial not only of the * conversion, but of the plain- tiii''s title ; and under it the plaintiff's property must be proved, or may be disproved by the defendant.'' In Churchill v. Bennett^ the question of the effect of the pleadings is considered in an action by a judgment creditor to set aside an assignment made to defraud creditors. The complaint alleged that the assignor, ever since the assignment, had had actual possession of the property, and there had been no actual and continued change of possession. The answer set forth that the assignees took posses- sion immediately after the execution of the assignment, and denied that the assignor had, since the assignment, managed mid con- trolled the property, accompanied with a general denial that the assignment was fraudulent, and an averment that the assigned > 4 Sandf. 668. And approved in ' Connoss v. Mdr, 3 E. D. Smith, 314 ; Fry V. Bennett, 5 id, 64. McKensie v. Farvell, 4 Bos. 303. •^ NewYork Dry -Dock. Oo.Y.]\rrLito.i!i, 'Robinson v. -Frost, 14 Barb. 536 ; 5 Hill, 390 ; V"n. h'rnH.whicr's Kx'rs v. Woodruff \. Cook, 35 id. 505. (MUiip. 5 Den. 4.^j4, ' 8 How, Pr. 309. SEC. III. J EFFECT OP PLEADINGS. 799 property was hona fide surrendered into the possession of the assignees, where " the same has since remained as herewibefore specified. ''^ This was held an insufficient denial of the material fact that there had not been an actual and continued change of possession, and on a motion to dissolve an injunction that fact was regarded as admitted by the pleadings and the motion accordingly denied. In Vande?'iilt v. The Accessory Transit Company,^ an allegation that a certain account for coal, etc., sold and delivered had been liquidated at a certain sura, of which a portion [*764:J *(stated in the complaint) was alleged to be due and unpaid, not being met by a direct and positive answer or denial, the court allowed an amendment of the answer on terms. Every affirmative material fact not put in issue by a general or specific denial, is to be deemed admitted for all the purposes of the action, and cannot be contradicted or varied by evidence on behalf of the opposite party; for a judgment, contrary to an admission in the pleadings showing there ought to be no judgment, would be erroneous." But a defendant who does not answer is not to be taken as admitting any thing contained in an answer of a co-defendant in which he has not participated.' Nor, where there is a general denial of the complaint, can a second answer, which admits a materiel allegation in the complaint for the purpose of setting up matter in avoidance thereto, be used by the plaintiff as an admission in the cause. Were this so, as is well remarked by Justice Hand, in Troy <& Sutla/nd Railroad Co v. Jloioe* every good answer of new matter, notwithstanding a general denial, would be an admission of the complaint generally, and would change the. onus to the defendant. Where a defendant makes an admission in his sworn [*'765] answer, that admission may be taken most * strongly against him on the trial ; and he will not be permitted to retract such admission and amend on the trial, unless on very clear proof that he has been misled or deceived." A defendant who, by his answer, merely says that an agreement set forth in a complaint is " incorrectly stated," and then proceeds to controvert > 9 How. Pr. 352. * 17 Barb. 599 ; and see also Ketehum 2 Bridge v. Payaon, 5 Sandf. 317; v. Zerega, 1 Smith's Com. PI. 553. Haekett v. BicMvds, 11 Leg. Obs. 315. '^ Milkr v. Moore, 1 Smith's Com. » Woodworth v. Bellows, 4 How. Pr. 34. PI. 740. 800 THE ISSUE. [CII. VIII. certain parts of it, will be held to have admitted all the agreement not thus specifically controverted." So where an answer denies that the defendant has broken the agreement set forth in the com- plaint, " further or otherwise than as is hereinafter stated," this throws the burden of proof on the defendant ; and in default of his proving such facts as he has alleged, qualifying or discharging his obligation, the pleading will be regarded as an admission for the purposes of the trial, and the plaintiff will be relieved from proving a breach." And, generally, the old common-law rule of pleading, that matter of special defense admits the allegations in the declaration, is applicable to the Code. Thus where, without taking any issue, the defendant simply pleads set-off, which is not proved at the trial, the plaintiff is entitled to judgment on the pleadings without proof, as in case of a default.^ I have thus considered the nature of the allegations men- [*766] tioned in section 168, and the qiiestion of * their materi- ality. There is another point in this section worthy of attention. The language is peculiar and may be susceptible of two meanings. " Every material allegation of the complaint, not controverted by the answer, as prescribed in section 149," etc., is to be taken as true. Is it deemed to be admitted only when not controverted as prescribed by the section referred to V Is it an entire failure to deny the allegation which alone can have the effect of an admission, or will a failure to deny in manner and' form, as prescribed by the section referred to, have that effect ? We have seen " that a mere general denial, even under oath, which violates this rule of pleading prescribed by the Code, as if a party should deny the whole complaint, instead of each allega- tion thereof, or deny changes collectively, which should be denied disjunctively, is defective. We have seen, also, the manner in which such a defective pleading may be reached by motion, as for judgment on a frivolous answer, or to strike out an irrelevant or immaterial issue. But will such defective denial operate as an admission of the facts on the trial ? Or, if the defendant, instead ' Levy V. Bend, 1 Smith's Com. PI. or specific denial of each material alle- 169. gation of the complaint controverted ' Cotlieal V. Tidmadge, 1 Smith's Com. by the defendant, or of any linowledge PI. 574. or information thereof suificient to ' Gregory v. Trainer, 1 Abb. Pr. 30n. form a belief." The language in re- ■• § 149. " The answer of the de- spect to thi^ reply is similar, g 153. fendant must contain: 1. A general '^ Ante, pp. 5!)8, 599. SEC. III.] EFFECT OF PLEADINGS. , 801 of denying any Icnowledge or information svfficient to form a helief, as jpresoriied by the Code, should deny his recol- [*76Y] lection * of the fact, or attempt to traverse it on belief merely, is the fact to be deemed admitted for the purposes of the suit within the meaning of section 168? A literal con- struction of the language, perhaps, might involve such a conclu- sion ; the words " as prescribed," no doubt, may be construed to mean " in the manner prescribed." This indeed seems to have been so held at special term in Doremus v. Lewis, a case which was subsequently reversed at the general term,' though upon a different point from that now under consideration.'' On the argument of that case at special term Justice Willaed held that a reply to the effect that the plaintiff had not sufficient knowledge to form a belief, which did not also " specifically controvert " the allegation, was insuificient, and that such reply admitted the matter so attempted to be answered. At the general term the reply was held suificient, and the judgment reversed without considering the other question as to the effect of such a reply as an admission on the trial. The words " as prescribed," no doubt, refer to the substance rather than the mere manner or form of the denial. In the case of Howell V. Fraser' it was very properly said that the PTSS] Code never intended * that judgment should be given against a party who has merits for a mere matter of form ; and it was held that if a pleading was correct in substance, though not in form, the remedy was not by demurrer, but by motion to make it more definite and certain, or in some way other than by demurrer.* A demurrer, it will be recollected, admits the facts ; if, therefore, the decision in the case last cited be correct, and a plaintiff is not entitled to judgment on a mere defect in the form or manner of stating the denial to his complaint, then such defect will not be considered on the trial as an admission of the facts. But if the denial is so defective as to cease to be matter oi form ' 8 Barb. S. C. 124. taken as admitted on the trial. This "^ And such also was the construction decision was sustained by the general in Wood T. Staniels. in the New York term of that court on appeal. common pleas, 3 Code R. 152. A ^ 6 How. Pr. 221. traverse that the defendant " is ignor- " [Stickney v. Blair, 50 Barb. 340 ; ant of whether," etc., was held insuffi- Wood v. Wood, 26 id. 359 ; Simmons v. cient, and the facts 30 traversed were Eldridge, 19 Abb. 396.] 101 802 THE ISSUE. [CH. VIII. merely, and is so evasive or frivolous as really to amount to no answer at all as in the cases above mentioned, v^liere a denial is general but does not go to each, allegation of the complaint, or where defendant denies reoollection of a fact alleged in the com- plaint, etc., in such cases it would seem that the plaintiff, if he has not raised the question before, may insist upon the trial that the fact so evasively denied, is to be deemed admitted ; and that the defendant shall not be allowed to introduce evidence to dis- prove such facts. In Ayres v. Oovill,^ it was said, by Justice Hand, that an admission made in the course of a pleading is not an admission for all the purposes of a cause, but only for all purposes [*769] regarding the issue a/rising on that * pleading. Thus, when a defendant, in his answer, by certain admissions, supplies a defect in the complaint, on demurrer to the answer, the defendant may go back and attack the complaint, but the admis- sion in the answer will not help the defective complaint. It is only an admission in that line of defense or pleading. An admis- sion in one defense, in an answer to a complaint on a promissory note, that the defendant indorsed a note, similar in amount and description to that mentioned in the complaint, accompanied with a denial of all knowledge or information sufficient to form a belief that he indorsed the same to the plaintiffs, or that the plaintiUs are the owners or holders thereof, " as stated in the complaint," was construed, on a motion for judgment on the ground that the answer is frivolous, to relate to the note described in the com- plaint.'' The effect of ike answer of one defendant on the rights of another was considered in Woodworth v. Bellows and others.^ If the answer of one defendant contain a proper case for the adjudication of equities between himself and a co-defendant, but contain no denial of the complaint, or any defense material on the question of the plaintiff's right to recover, it will be struck out, on motion, as irrelevant, and, perhaps, judgment might be rendered as on a frivolous defense.' [But a defense which affects ' 18 Barb. 860. " [Smart v. Bement, 3 Keyes, 341 ; '' Williams etal.^. Richmond, ^^ov!. Farmers' Loan, etc., v. Seymour, 9 533 Paige, 539 ; i!/i7ier v. Case, Clarke's Ch. MHow. Pr. 21 395; Stephrns v. Hall, 2 Rob. 674; ante, 541, marg. p.] SEC. IV.J PLEADINGS, HOW CONSTEUED. 803 the plaintiff's rights is proper.'] So far as the defendant, [*YYO] * who fails to answer, is concerned, he is not deemed as admitting any thing alleged in an answer in which he does not participate. The facts stated in the complaint as to him, and those facts alone, are to be taken as true. The effect of a partial answer to a complaint, or an answer extending to only one distinct cause of action, was considered in Tracy and others v. Humphrey.'' In that case the complaint claimed judgment on separate and distinct bills ot accounts, and " an aggregate amount as a balance due upon all ; and the answer denied one bill only and the balance claimed, but was silent as to the other two bills. The court held the effect of the pleadings to be the admission by defendant of the two accounts due, and, on a motion to strike out a verified answer as false, suffered the answer to stand, and ordered judgment for the plaintiff on the two sums not denied, leaving the action to proceed in respect to the residue. And by the Code, when the answer of the defendant admits part of the plaintiff's claim to be just, the court, on motion, may order such defendant to satisfy that part of the claim, leaving the action to proceed as to the residue." [*771] * SECTION IV. PLBADIlifGS, HOTV TO BE CONSTEUBD The rules whereby to determine the sufiSciency of the pleadings under the Code, and the change effected by the Code in the for- mer rules of pleading, both at law and in equity, were fully con- sidered in chapter 1, section 4, of this work. It remains here briefly to notice generally the rules of construction applicable to pleadings, so far as the language and terms employed are con- cerned, and how these rules are effected by the Code. It was a general rule under the old system, and frequently recognized in our courts, that where a pleading is equivocal, and two meanings f)resent themselves, that construction shall be ' Stickney v. Blair, 50 Barb. 341. » Code, § 344. •' 5 How. Pr. 154. 804 THE ISSUE. [CH. VIII. adopted which is most unfavorahle to the party pleading.' This, however, was only before answer to the pleading; for, after ver- dict, the equivocal exjjression was to be construed in such a sense as would support the verdict.'' It was also subject to certain other rules, namely, that the language of the pleading should have a reasonable intendment and construction ; " and where an expres- sion was capable of diiferent meanings, that should be [*'772] taken which will support * the declaration, etc., and not the other, which would defeat it.' Thus, in an action on a bond, conditioned that the plaintiff should enjoy certain land, etc., a plea that " after the making of the bond, until the day of exhibit- ing his bill, the plaintiff did enjoy," without averring that he enjoyed continually, was held to be good. And, if a pleading can be made good by any state of facts consistent with its averments, it is sufficient." The rule, as applied under the decisions of the courts, seems to have meant nothing more than that, if the expression or term used was capable of different meanings, the court would construe it to support the proceedings in which the particular term occurred, unless by doing so they would be obliged to give it a meaning against which the uses, habits and understanding of mankind would plainly revolt. This was the rule in regard to actions for words, either spoken or wiitten, namely, that the court is to understand them according to their ordinary acceptation among mankind ; ° and the rule is the same under the Code.' If, how- ever, the expression or term was clearly capable of two different meanings, the pleading was to be liberally construed, and that construction was adopted which would render the [*773] * pleading consistent with itself. If the sense was ambig- uous, it might be helped by the context or other means ; as if words of reference, such as, " there " and " said " were used, they would not be referred to the last antecedent, where the sense required that they should be referred to some prior antecedent.' 1 1 Chit. PI. 337, 1 Hill, 71, 3 id. •> 13 Johns. 483 ; Allen v. Patterson, 475 ; [Butts v. Boselcrans, 23 How. 98, 7 N. Y. 480. 34 id, 626, Beaoh v. Bay State Go., 10 '' TJtiea Ins. Co. v. Scott, 8 Cow. 809. Abb. 71, 30 Barb. 438.] » 5 Johns. 584 ; 3 Gaines, 76 ; 5 East, ■' 2 Johns. 387, 15 East, G14. 646. 8 5 Bast, 244, 12 id. 270 [Allen v. ' 6 How. Pr. 99 ; 5 id. 171 [Oloott v. Patterson, 7 N. Y. 480 ; Okott v Oar- Carroll, 39 N. Y. 436.] roll, 39 id. 436.] * 1 Chit. PL 237, 338. SEC. IV.J PLEADINGS, HOW CONSTRUED. 805 These rules for the construction of pleadings were liberal and proper, and went far toward relieving the proceedings of much of their formality. The Code seems to have substantially re- enacted them in section 159, as follows : " In the construction of a pleading for the purpose of determin- ing its effect, its allegations shall be liberally construed, with a view to substantial justice between the parties." ' I do not understand that this section refers to any thing further than the mere construction of the language and terms used in the pleading. It is in the construction of a pleading for the purpose of determining its legal effect ; and is not one of those rules of construction whereby to determine the stiffictenoy of the plead- ings, either as to the statement of facts which go to constitute the cause of action, or the denial and statement of defense in the answer. Though in Lewis v. JTendall' it was intimated that the section might be applied to a defective pleading which violated the rules of the Code in these respects, yet the spirit of [*T74] the decision is * manifestly the other way ; and the court in that case remarks : '' I am satisfied the courts will have to enforce these rules with some vigor, or the present system of pleadings will never answer the purposes for which it was intended." It will not do, therefore, for a party who has failed in alleging a good cause of action, or a sufficient defense, to endeavor to escape the consequences of bad pleading by throwing himself upon the liberal construction, authorized by section 159. The CL,^\rt is not authorized to construe a material allegation into a complaint which contains no such allegation, as for example, the consideration of a contract, or a demand of personal property, when such consideration or demand is necessary to be proved in order to entitle the plaintiff to recover. Nor, as in the case of Lewis V. Kendall, supra, can this section avail to make a hypo- thetical pleading good, or one which violates the general rules of pleading prescribed by the Code. If this view is correct, it follows, that although the section in question may be in some sense a rule to determine the sufficiency of the pleadings, yet it applies merely to the construction of the ■ See Oleott v. Ca/rroll, 39 N. T. 436. « 6 How. Pr. 65. 806 THE ISSUE. [CH. Till. language and the terms used, and has no reference to the question of the sufficiency of the facts or matters of substance pleaded. It is to be applied, as was the rule of construction under the old system, mainly where words are equivocal, and terms and expres- sions are capable of different meanings. And such seems [*7Y5] to have been the construction put upon the * section, as in the case referred to by Justice Haeeis, in Taylor v. Cvrbiere^ in which it is held that under the liberality of construc- tion which this section enjoins, the words " legal holder," in an action on a note, are to be regarded as a sufficient allegation of ownership, which the defendant, if he chooses, may traverse or deny. So, in the case of Allen v. Patterson^ in the court of appeals, the word " due," in an action for goods sold and delivered, was held, under this rule of construction, to express the fact that the money sought to be recovered had become payable, or the time when it was promised to be paid had elapsed. Though it was admitted that the word was sometimes used in another sig nification, and to express the mere fact of indebtedness, yet tht court held it was not required to apply the common-law maxim, that if the meaning of words be equivocal, and two meanings present themselves, that construction shall be adopted which is most unfavorable to the party pleading ; but on the contrary, under the rule of construction aiithorized in this section of the Code, the court was authorized and required to consider the meaning intended by the pleader, and the sense in which he used the term. " The rule that once prevailed," says Justice Geidlet, in Richards v. Edicli^ "that a pleading should be construed most strongly against the pleader, is now abrogated by the Code (section 159), which ordains that the allegations of the [*776] * pleader shall be liberally construed, with a view to sub- stantial justice between the parties." In all these cases, the construction is to be liberal, for the pur- pose of determining the effect of the allegation and with a view to substantial justice between the parties. It should be as liberal certainly as under the old practice ; more so, it could scarcely well be ; for, as we have seen, in the case of an ambiguous expression, the court would adopt the meaning most favorable to the pleader I 8 How. Pr. 385. = 17 Barb. 370. •' 3 Seld. 476 ; {OlcoU v. Oarroll,39 N. Y. 486.] SEC. IV.J PLEADINGS, HOW CONSTEUED. 807 when necessary to sustain his pleading, if it conlcl be done with- out violence to the clear and palpable meaning of the term or expression in its common acceptation. Perhaps, under the Code, cases might arise where a liberal construction, with a view to substantial justice, woiild authorize the court to go further and adopt a construction in aid of a doubtful pleading which would do violence to the comm.on acceptation of the term, but, this being a matter entirely discretionary, it will be itdnecessary to speculate upon it here. The construction is to be liberal, for the purpose of determining its effect. I understand this to mean its effect generally as a plead- ing in the cause, in whatever way the question is raised ; and not merely its effect as an admission on the trial under section 168. No doubt cases will occur where, in the construction of the lan- guage of a pleading for the purpose of determining its effect, a less rigorous rule of construction may be authorized under this section than under the former practice. Thus, when a [*7T7] pleader formerly undertook to assign a breach, not *accord ing to its letter, but coming within the substance or effect of the covenant, he was held to a more strict rule than when he followed negatively or affirmatively the words of the covenant.' A mere technical defect in this particular will now undoubtedly be remedied under this section, and, if the breach assigned be sub- stantially sufficient, it will be good. And so in other cases. The effect of the pleading, too, as an admission in the cause under section 168, may also sometimes properly be assisted by this section. If the defect is merely formal, and the denial is not stucXiy vnva&n-nQi- ^^ as prescribed" by the Code, but it he intended as a denial, and the opposite party have neglected to raise the question in some other way, a liberal construction would authorize the court to give it the effect of a traverse on the trial.'' > 4 Hill, 154. '' Stichney v. Blair, 50 Barb. 340 ; Wood V. Wood, 36 id. 359. 808 THE ISSUE. [CH. VIII. SECTION V. SPECIAL BTJIiBS APPLICABLE TO PLEADINGS. In the preceding chapters relative to the complaint, the answer, bhe reply and the demurrer, respectively, the principal general rules applicable to and which, under the Code, determine [*778] the sufficiency *of these several pleadings, have been considered, and it remains in this place briefly to notice some special rules provided by the Code or retained from the old system, applicable mainly to the form of the pleadings, and, first : "Every pleading in a court of record must be subscribed by the party or his attorney, and when any pleading is verified, every sub- sequent pleading, except a demurrer, must be verified also." ' The subject of the verification of the pleadings has already been considered in the preceding chapters on the complaint, answer and reply. In respect to the rule laid down in the above section of the Code, that every pleading must be subscribed by the party or his attorney, it is to be observed that a failure to comply with the rule would be an irregularity which would ren- der the pleading liable to be set aside on motion, precisely the same as a defect in the title of the complaint, or a failure to demand the relief to which the plaintiff supposes himself entitled, as to which see ante, chapter 4, sections 1 and 3. Such a defect is not a matter of substance, and would not, therefore, be the sub- ject of demurrer. Nor would it be correct practice, it is con- ceived, to treat the pleading as a nullity and enter judgment,^ at least not until the pleading had been returned or notice of the defect given to the opposite party. It has been held, [*779] however, that a subscription to the affidavit '^verification alone was a sufficient subscription of the pleading within the meaning of the Code." The rules of the court provide that every pleading exceeding two folios in length must have the folios distinctly numbered and ' Code, § 156. [This section must be improper practices of an attorney who read in connection with section 138 (as had bei'n stricken from the rolls, per- amended in 1870), which requires a sisting in sning in person,] summons to be subscribed by ajAi attor- '' As was done in Hubbel v. Livings ney. This amendment was said to ton, 1 Code, 63. have been made in consequence of the ^ Hubbel v. Livingston, 1 Code, 63. SEC. V.J SPECIAL RULES TO PLEADINGS. 809 marked in the margin thereof; and the pleadings and other pro- ceedings must be fairly and legibly written.' This is similar to the former rule in regard to equity pleadings. If not so writ- ten, the clerk is prohibited from filing them. [The partj upon whom papers are served which do not conform to the requirements of the rule, waives the objection unless they are returned within twenty-four hours with a statement of the particular objection. In a flagrant case the want of legibility might be treated as an irregularity which the court would correct on motion.'] The motion is strictly technical, and though, perhaps, a party has a right to have the pleading of his adversaiy conform to the rule in this particular, yet he must in all respects be technically cor- rect himself and move at the earliest opportimity. In one case' a motion to set aside the complaint on this ground was denied, the affidavit on which the motion was made being liable to the same objection and there having been laches in making the motion. In that case the court observed, that so far as the objection as to numbering the folios was concerned, the pleading should have been returned, and the defect pointed out ; and this, on the whole, seems to be the only safe mode in which a party can enforce a strict observance of the rule. [*780] * The rules also require that several defenses should be not only separately stated but plainly numbered.'' The object of this rule is thought, by Justice Cady, to be to render the pleading definite and certain ; and for a violation of it the remedy of the opposite party is by motion to correct the pleading under section 160, and not by motion to set aside the pleading for irregularity." The items of an account are not necessary to be set forth in a pleading under the Code." But the Code provides that a party pleading an account shall deliver within ten days after demand a copy of the account. The answer, however, must be to the plead- ing itself, and not to the bill of particulars. An answer avowedly to the bill of particulars, and not to the complaint, was held to be ' Supreme Court Rules, 26. * Supreme Court Rules, 25. ' Henry v. Bow, 20 How. 215 ; Banes ' Wood v. Anthony, 9 How. Pr. 78 ; V. Jones, 8 Dowl. & Ryl. 114 ; Johnson [ante, 344, marg. p.l V. Casey, 3 Rob. 710, 28 How. 492. « Code, § 158. ' Sawner v. Bchoonmaker, 8 How. Pr. 198. 102 810 THE ISSUE. [CH. VIII. insufficient and liable to demurrer.' An answer alleging a set- oft' in a sum of money equal to tlie sum claimed by the [*781] plaintiff, " as will appear by the account current rendered* by the defendant as stated in the complaint," is indefinite and uncertain. On an order to make such an answer more definite and certain by amendment, the defendant stated his set- off to be generally for work and labor, merchandise, etc. Held no compliance with the order, and the answer struck out with costs.^ And see further as to the manner of pleading an account on the part of the plaintiftj ante, page 266 (marginal paging), and on the part of the defendant, ante, pages 580-589 (marginal paging). We have already considered the rules provided by the Code in pleading, in certain special cases, such as a judgment or deter- mination of a court or officer of special jurisdiction ; ■■ the per- formance of conditions precedent in a contract, and a written instrument for the payment of money ; * a private statute ; ° in cases of libel and slander; ° and in an action to recover property distrained doing damage.' It will only be necessary here to refer to what was said on these subjects, respectively, in the preceding pages. These rules are of general application, and, of course, abolish whatever in the old system conflicted with them. They may properly be classed here as special rules of pleading, because, unlike those broader principles elsewhere enunciated and laid down in the Code, they relate rather to the form and manner than to the substance of the pleading. They are, also, it [*782] will be observed, in * the main permissive, rather than obligatory ; leaving it optional with the party to plead the facts in the manner indicated in these sections, or to adopt the stricter rules of pleading. Thus, in an action or defense on a written instrument for the payment of money only, ^'it shall he suffioient for the party to give a copy of the instrument," etc. Or he may state it in his complaint in the usual form of stating a cause of action. So in pleading a private statute, it. is sufficient to refer to such statute, by its title and the day of its passage ; 1 Scovill V. Ilowdl, 3 Code, 33. « g 163, ante, pp. 370, 496, marg. p. 2 Wiggins v. Oaus, 3 Saudf. 738. « ^^5 164, 165, aute, pp. 371-374, 483- ' ^ 161, ante, pp. 370, 406, marg. p. 496, marg. p. * 1 163, ante, pp. 336-335, marg. p. ' § 166, ante, p. 497, marg. p. 8EC. V.J SPECIAL RULES TO PLEADINGS. 811 but if the party choose to plead it in the old form and manner he may, doubtless, do so without incurring the hazard of a motion to strike out the matter as redundant. There are also a variety of other special rules relative to plead- ings, so far as the form and manner of statement are concerned, \vhich, though properly belonging to the old system, are not inap- plicable to the new. Many of these we have incidentally noticed in various parts of this work, and do not intend to refer to them again in this place. One or two others, however, may be briefly noticed here. Thus, under the present system, as under the former, every answer to be good must either traverse or deny the facts of the previous pleading, or it must confess and avoid them. Under the former system a pleading in confession and avoidance must give color ; that is, it must confess the matter adversely alleged, either expressly or impliedly, to such an extent, at least, as to admit some apparent right in the opposite party, which requires to [*783] be encountered * and avoided by the allegation of the new matter. ' It was not required, however, to be an absolute confession, but might be sub inodo merely, so far as to admit some sort of apparent right or color for the action ; as in an action for trespass for taking sheep, the defendant may plead that a third person was possessed of them, and sold them to him in market overt, for though this does not admit the sheep to have been the plaintiff'' s when the defendant took them, as alleged in the decla- ration, yet it admits them to have been his, subject to the effect of the sale in market overt, and therefore gives some color to the plaintiff's claim.° This principle of giving color to the plaintiff's claim may be applied to confession and avoidance in an answer under the Code. Such an answer to be good must admit an apparent ov prima facie right of action independent of the mat- ter disclosed in the plea to destroy it. And it has so been held under the Code.^ " The principles of pleading," says the justice > [Steph. PI. 301 ; 1 Oliit. PI. 537 ; 1 will find the subject fully treated by Hill, 366 ; 6 id. 311 ; Ganger v. Johnson, Mr, Conway Robinson in Ms Practice, 3 Den. 96 ; Margetts v. Bays, 4 Ad. & vol. 5, pp. 395, 307, 333, 344, 350, 351.] Ell. 489 ; Sanders v. Coward, 3 Dowl. & » Steph. PI. 303. L. 381, id, 15 Mees. & Welsb. 48 ; * Buddington v. Davis, 6 How. Pr. , Mortimer, 1 Bxch. 711 ; Dor- 403. man v. Long, 3 Barb. 314. The reader 812 THE ISSUE. [oh. VIII. who delivered the opinion in the case last cited, " whatever the system, are always the same. Its oiiice is to present the cause of action on one side, and a defense on the other. This is not less true under our present system than it was under the for- mer. Names are changed — useless forms and technical [*784] rules are abolished — but the principles remain unchanged.* What now is a good answer, would before have constituted a good plea in bar." ' [But this confession and avoidance is not an admission of the facts for any purpose except that of the particular plea.^ It is a good plea in confession and avoidance to say "that the supposed causes of action," etc.'] Again, at common law, it was a principle that every pleading must be an answer to the whole of what is adversely alleged.* A pleading professing to answer the whole, and answering only a part, is bad on demurrer.' This special rule of pleading has also been held applicable under the Code, and a pleading, commencing as an answer to the whole complaint, and assuming to answer the whole, but containing facts which only constitute a defense to a part of the complaint, held bad on demurrer." But the rule does not apply to SLpa/rtlal defense, when allowed to be pleaded by the Code, such as recoupment or set-off. This subject has been considered on a former page.' It was also a rule of pleading at law that a traverse could not be taken upon matter not alleged, with the exception, however, that it might be taken upon matter which, though not expressly alleged, is necessarily implied.' The effect of this rule, and its application to pleadings under the Code, have been already briefly noticed in sections 2 and 3 of chapter 6. The principle of a traverse to an implied allegation is very clearlj^ and definitely [*785] *recognized in Giesso7i v. Giesson' and Lord v. Cheese- iorough." Thus, as in the former case, in an action on a ' And see, as to oolor, opiuion of ' Thumb v. Walrath, 6 How. Pr. 196. Sbldbn, J., ill Benedict v. Seymour, 6 ' Ante, pages 454^-458, marg. p., and How. Pr. 305, 306. cases there cited. " Ayers v. Govill, 18 Barb, 360, 264. » Stepli. PI. 193, 193, 3 Salli. 639, 6 ' Eavestaff v. Russell, 1 N. Y. Leg. Mod. 158. Obs. 339. ' 1 Code R. N. S. 414. ■• Steph. PI. 314, 13 Wend. i V. ThoimiK, 4 How. Pr. 390. [Phillips v. Smjdam, 54 Barb. 153, 6 ' Plumb V. Whiiiple.1, 7 How. Pr. Abb. N. S. 389]. 411 ; the case of Mur/jiin v. Leland, 1 ' 5 How. Pr. 357. Code, R. 133, cnntr AMENDMENTS. [CH. IX. or give security therefor. A similar practice is sanctioned by the court of appeals in the late case of Montgomery County Bcmik v. Albany City Banh,' wherein it is held that if two persons are made defendants, and the complaint does not state facts sufficient to constitute a cause of action against one of them, the objection may be made at the trial, and, upon the fact appearing, the com- plaint should be dismissed as to such defendant. And, even after trial, the court on appeal will allow a plaintiif to apply on motion for leave to amend his complaint by adding a party defendant, on terms, where it appears that there has been a non- joinder, as in the case of Rochester and Genese.e Yallcy Railroad Co. V. Beckwith.'^ In Butcher v. Slach,^ a party plaintiff was allowed to be added on motion, the court holding that an amendment as to parties might be made by the Code, "in furtherance of justice," jjrovided only the amendment did not change substantially the cause of action or defense. The rule thus limited in its apphca- [*808] tion was undoubtedly correct, as the Code *then stood,* an amendment by the court being allowed on terms only "whenever the amendment shall not change substantially the cause of action or defense." As the Code now reads, however, this clause stands by itself, disjunctively, and it does not by gram- matical construction limit the power of amendment in cases of " adding or striking out the name of any party," or " correcting a mistake in the name of a party," or " a mistake in any other respect," or " inserting other allegations material to the case." These four classes of amendments may now be made in the dis- cretion of the court, in furtherance of justice, which, it seems, is the only limitation, and the sole inquiry on such an application.' Within the language of this section as it now stands, perhaps the amendment asked in Wright v. Storm, suj>ra, might have been properly allowed. In a partition case, Justice Willaed allowed a plaintiff to amend a defective complaint at the hearing, in con- formity with the old ec^uity practice, by adding and striking out parties, and making such other changes as might in consequence become necessary, on payment of costs to the party stricken out > 3 Seld. 459. ' S 149, original. ' 10 How. Pr. 163. ' So held in Baardsley v. Stover, 7 «3How. Pr. 323. How. 294. SEC. I.J IN GENERAL. 827 of the pleadings incurred subsequent to appearance,' and doubtless the same amendment might have been made on appli- [*809] cation before hearing. A mistake in *the name of a party is not a ground for nonsuit, but it can be amended at the trial or afterward." A complaint was allowed to be amended by striking out the name of a party plaintiff, who had been discharged under the insol- vent debtor act, after the cause had been referred, and some tes- timony taken therein, such plaintiff being required to paj' the costs of the motion, and give security to pay his portion of the costs which had already accrued in case the defendant recovered judgment.' The name of a next friend, in Forest v. Forest* was allowed to be inserted in the pleadings by amendment. And it may be inserted, it seems, nunc pro tunc at any time.'' And an amendment may be ordered at any time before, or at the hearing, by bringing in the proper parties, who have rights or interests in the controversy, and whose presence is required in order to render a full and perfect judgment." In respect to the correction of mistakes, either in the name of a party or in any other respect, the utmost liberality is exercised by the court. An amendment will always be allowed which does not prejudice the substantial rights of tlie opposite party, the terms being usually payment of the costs of the motion. [*810] In Vanderlilt v. Accessory Transit Co.^' *an important admission in an answer, made by mistake, was allo\ved to be amended by interposing a denial on terms ; and it was said in that case that the doctrine of amendments under the Code is to be liberally applied, or, as it is expressed in the language of the decision, that the " courts must be blind to defects and indul- gent to amendments." ° With regard, however, to the clause which allows an amend- ment " by inserting other allegations material to the case" it is very evident that, except before trial and judgment, it must be taken with many limitations and restrictions, and must be con- strued with other parts of the Code. A complaint defective for ' Vandenoerker v. Vanderwerker, 7 * 3 Code R. 254. Barb. S. C. 321, and see § 123, Code. ' 6 How. Pr. 896. ^ 9 Barb. S. C. 202. ' « JoTinmn v. Snyder, 8 How. Pr. 498. * Dams v. Sohermerhorn, 5 How. Pr. ' 9 How. Pr. 852. 140. * [Bennett v. Lake, 47 N. Y. 93.] 828 AMENDMENTS. [CH. IX. want of material allegations, tliat is, which does not state facts sufficient to constitute a cause of action, is bad on demurrer and is not cured by a \'erdict. In Davis v. Garr^ the defendant applied, after judgment, to open the pleadings and allow him to plead anew, which was denied. So in Maloom v. JBaker," where, after the argument of a cause on appeal, a motion was [*S11] *made to amend the answer and was denied ; and Justice Welles remarks that, in order to allow an amendment under such circumstances, " it should not only appear that the party has been surprised or misled, after the exercise of ordinary care and skill, but that the amendment asked for is clearly re- quired in order to promote the ends of justice." So, also, in the late case of Egert v. Wicker,' where, after the hearing and decision of a cause adverse to the plaintiff, on the ground of a fatal variance between the pleadings and proof, a motion to amend the complaint by changing the gravamen of the charge, was held to be entirely too late and was denied. The amendment can only be made when it does not change substantially the claim or defense. So also as to amendments of the pleadings by inserting material allegations on the trial, as in the case of Hoth v. Schloss,^ where the plaintiff's counsel offered to prove a material fact not alleged in the complaint, and asked leave to amend, which was refused. Upon the motion in that case for a new trial, the court says : ' ' This was not a case of variance. There was an omission in the complaint of the entire allegation offered to be proved. It was, therefore, a case under the 149th section," and the motion should not have been granted, unless it had clearly appeared that to grant ii^ova^he,^ in fuHhera/nce of justice.'' If it be admitted [*812] that * the fact offered to be proved was material for the plaintiff to establish, then that fact might be controverted by the defendant, which would require an amendment of the answer, and, very likely, upon that new issue, it would be material to produce witnesses who were not then in attendance at the court." The court, therefore, held the application to have been very properly denied." It was further said, in that case, that the > 7 How. Pr. 311. ■'6Barb,S.C,308,atGen.T.,5tliDist. « 8 How. Pr. 301. <■ Original Code. 8 10 How. Pr. 193 « But see Executors of Keeae v. Ful- SEC. I.] IN GENERAL. 829 denial of a motion to amend, where the law reposes a discretion in tJie judge, is not an appropriate ground of exception. Terms of amendment. — The amendments indicated by the section under consideration are all to be on " such terms as may be proper," that is, as the court in its discretion may think fit to impose. The costs of the motion, if before trial, as we have already seen, is usually granted. But if the amendment is applied for after the cause is at issue and actually noticed for trial, the costs of the circuit, as well as the costs of opposing the motion, will be required to be paid ; ' or, if the name of an adverse party be struck out, his full costs up to the time of motion." Some- times also other terms will be imposed.' [*813] 3. Amendments hy the court, eithsr on the trial, on judgment rendered, or on inotion of tht adverse pa/rty. [There is a class of cases in which it has been held, that while the courts before trial have power to allow almost any amend- ment, yet, upon the trial, they can only amend variances and such matters as do not materially change the substance of the plead- ing." If by this it is meant that, as a matter of discretion, only that class of amendments shoidd be allowed upon trial at circuit where the party against whom they are made may be compelled, in the hurry of a circuit, to change his line of action or defense, they are undoubtedly good law. As a question of power, how- ever, the court may allow any amendment upon the trial which it could allow on a motion before trial.* The rule, however, does not apply to trials before a referee or the court where the trial may be adjourned without serious inconvenience to the parties.' Nor does it prevent the court, in a case where the cause of justice requires the so doing, from allowing the amendment on condition lerton, 1 Code R. 52, where such an 97 ; Cayuga Oo. Bank v. Warden, 2 id. amendment was allowed on payment 10. of the costs of trial, with leave to the ■* Bigelow v. Dunn, 36 How. 120 ; 53 defendants to answer in twenty days. Barb. 570, and cases cited ; Word v. ' Monell'sPr.42. Ford, 53 Barb. 525, 35 How. 321; 2 1 Code R. 27. Buslj^ v. TilUy, 49 Barb. 600. ' See generally as to terms of amend- * Woolseyw Trustees, 2 Keyes, 603 ; ment, Broton v. Babeock, 3 How. Pr. Waaiiruff v. Dickie, 5 Rob. 630 ; Wilde 305 ; also Davis v. Seherinerhorn, 5 v. Hexter, 50 Barb. 448 ; Vibbard v. id 440 ; VanderUlt T. AceesBorv Tran- Rodrick, 51 id. 616 ; Snunders v. Bate, di (7o.,9id. 352; Sare v. White. ZiA. 1 Hurl. & Norm. 402; Olendorf v. 296 ; Keese's Executors v. IPuUerton, 1 Gooke, 1 Lans. 37. Code II. 52 ; Cliapman v. Webh, 6 How. " Bennett v. Lake, 47 N. T. 93. Pr. 390 ; Gaming v. Corning, 2 Seld. 830 AMENDMENTS. [OH. IX. of withdrawing a juror and letting the case pass the term. In such a case, in order that both parties might fairly be heard as to the propriety of the amendment, the court would undoubtedly allow the party desiring it to withdraw a juror on payment of costs, and appjy to the special term for leave. Aitev judgment no amendment should be allowed which materially changes the plead- ings.' It has been held that an unconscionable defense, as the statute of limitations, usury, that the party was a married woman, etc., should not be allowed f as matter of discretion the court may refuse to allow such a defense to be interposed after the right to amend of course has passed,' notwithstanding the court has power to allow it,^ and in furtherance of justice will allow such a defense ° upon terms ; " the later cases hold that no such distinction should be made ; ' but such defenses should be allowed to be set up by way of amendment, the same as any other defense. As where the plaintiff's complaint shows a cause of action not barred by the statute, but his proof shows such an one.' When the facts are pleaded, the particular relief prayed for may be changed on the trial," and the court should grant any relief proper under such facts." The court, on motion, before trial, may allow an amendment by bringing in new parties and inserting any allegation proper to the case." If the issues be changed, an existing reference may be vacated,'^ or the referee may be changed," but it is not necessary to commence the trial de novo if the referee is not changed.'' A referee has the same power to allow an amendment as the court." The party against whom an ' Bunge v. Koop, 5 Eob. 1. * Sheldon v. Adams, 41 Barb. 54, 18 « Glinton v. Eddy, 37 How. 23 ; Phil- Abb. 405 ; MoElwain v. Corning, 13 lips V. Suydam, 6 Abb. N. S, 389. id. 16. ^ Phillips V. Suydam, 6 Abb. N. S. * McElwain v. Corning, 13 Abb. 16. 289 ; Clinton v. Eddy, 37 How. 33 ; ' Gilchrist v. GUehrist, 44 How. 317. Ford V. Ford, 53 Barb. 535 ; Gasper v. * Bricliett v. Dans, 31 Pick. 404. ^t^ams, 24 id. 387 ; Rohhins v. Richard- ' Pairchiid v. Valentine, 7 Rob. 565. soft, 2 Bosw. 348; Lovett v. Cowman, '» Olendorfy. Cook,\ Lans. 37. 6 Hill, 223 ; Wolcott t. MaFarland, G " Sayre v. Eraser, 47 Barb. 26 ; Par- id. 337 ; Grant v. McCaue/hin, 4 How. dee v. Foote, 9 Abb. N. S. 77. 316 ; Farish v. Gorlies. 1 Daly, 374; " Pardee v. Pootc, 9 Abb. N. S. 77. Bates V, Voorhees, 7 How. 334 {Osgood " ^¥h^te v. Smith, 1 Lans. 469, 46 N. V. Whettlexei/, 30 id. 73, 10 Abb. '184 ; Y. 418. Sar/ory v. N. Y., etc., 31 How. 455 ; '•• White v. Smith, 46 N. T. 418 ; but McQueen v. Buhrock, 33 id, 33i), 13 see Union Bank. v. Mott, 19 How. 367. Abb, 3()8, 41 Barb. 3;!7 ; see Harriot " Mclnn v. Wood, 4 Abb N. S. 438, S K. Wells. 9 Bd.sw. (i:!l, Keyes, 533, 3 Trans, App, 397 ; Wood- ■> Union Bank v, lias.wtt, 3 Abb, N. ruff v. Dickie, 5 Rob, 619 ; White v S 359 Smith, 1 Lans. 469, 46 N, Y, 418 ; Ben- SEC. I.J IN GENEEAL. 831 amendment is allowed should be given the privilege of answer- ing it,' when he may answer generally and set up any defense he pleases, even the statute of limitations, usury, etc.'' The moving party shoiild serve a copy of the proposed amended pleading with liis motion papers," or embody in his moving S,ffidavit a full statement cif the facts he desires to plead ; * and the affidavit m List be made by the party and not the attorney, unless the attorney be acquainted with facts and show a good excuse for not produc- ing the affidavit or sworn answer of the party. ^ A complaint will not be allowed to set up facts occurring after suit brought neces- sary to the cause of action. ° If the court, or a referee, allow or refuse an amendment, the allowance or refusal involves a matter of discretion, and. it has been held, is not appealable ; ' although in several cases involving the allowance of unconscionable defenses, the contrary has been held.^ We think an appeal lies to the gen- eral term of the supreme court from the granting or refusing of such an order, but not to the court of appeals." Although the general term would not reverse, except in a clear case of departure from the legal discretion confided in the special term." The court, as a matter of practice, to avoid carelessness or intentional suppression of facts or a defense, should be satisfied before allowing an amendment that there is a good excuse for not before pleading it," and that the party did not intentionally put his pleading in the shape in which it was to accomplish some purpose not otherwise within his reach ;" or that it was not known to him ;" netl V. Lake, 47 id. 93 ; Van Ness v. >* Union Bank v. Bassett, 3 Abb. N . Bush, 22 How. 481. S. .359 ; Harrington v. Slade, 23 Barb. ' Union Bank v. Matt, 11 Abb. 43, 161 ; St. Johns v. Groel, 10 How. 253 ; 19 How. 367. Union Bank v. Mott, 19 id. 367, 11 ' Ha/rriott v. Wells, 9 Bosw. 631 ; Wat- Abb. 42. ker V. Granite Bank, 1 Abb. N. S. 406. ' People v. N. Y. Central B. B., 39 ' Marquisee -^.Bingham, 13 How. 399 ; N. Y. 4i8 ; King v. Mayor, etc., 36 id. Ooodhue v. Ghurchman, 1 Barb. Ch. 190 ; Bank of Geneva v. Beynolds, 33 596 ; Wells v. Cruger, 5 Paige, 164, 1 id. 160 ; McGregor v. McGregor, 33 id. Barb. Oil. Pr. (1st edition), 367, 371. 479 ; Leslie v. LesUe, 6 Abb. N. S. 193. " Hunt V. Wallis, 6 Paige, 371 ; Good- '» Schermerhorn v. Wood, 30 How. 316. hue V. Churchman, I Barb. Ch. 596. " Harrington v. Slade, 23 Barb. 161 ; 5 Hunt V. Wallis, 6 Paige, 371. Cocks v. Radford, 13 Abb. 307 ; T.horm « MrCnllough v. Colby, 4 Bosw. 603, 5 v. Q'ermnnd, 4 Johns. Ch. 363 ; Whit- id. 477 ; Watson v. Thibou, 17 Abb. 184. marsh v. Campbell, 3 Paige, 67 ; Rogers ' Patchin v. Peck, 38 N. Y. 39 ; Sayre v. Rogers, 1 id. 424 ; Norris v. Kennedy V. Ifrrizer, 47 Barb. 36 ; Richtmeyer v. 11 Ves. 565 ; Sharp v. Ashton, 3 Vea. Remsen, 38 N. Y. 306 ; Whitaker v. & Beames, 144. Eighth Ar. R. R., 5 Rob. 650 ; Vibbard " Lane v. Beam, 19 Barb. 51. r. Roderick, 51 B^Th. 616; Van Ness Y. ^'- Btden v. Burdell, 11 Abb. 381- Bush, 33 How. 481. Whitma/i'sh v. Campbell,^ Paige, 67. 832 AMENDMENTS. [CH. IX. but when that is shown, as when the defense is owe puis da/rrien continuance^ it should be allowed, and it is error to refuse.' So the party asking to amend must be free from laches." An appellate court will not reverse a judgment for defects in the pleadings which neither surprised nor misled the appellant and which did not substantially aifect his rights.^ After a case has been tried without objection, or fully and fairly litigated upon the merits, the courts, on appeal, have been yery liberal in amending the pleadings in favor of affirmance to con- form to the proofs ; ' but such amendment will only be allowed so far as the same is consistent with equity ; ° and not to secure a rever- sal." So if a party do not object until the proof is closed the court will disregard a variance if the proof shows a good cause of action.'] The subject of amendments on the trial may also properly include amendments made after trial and verdict or new trial ordered. I have already briefly noticed when, and in what cases, under the old practice, amendments would be allowed to the pleadings after trial ; and the rule is very similar under the new. An amendment will be permitted after trial, as under the for- mer practice, by adding a new count to the declaration, in a case commenced before the Code.' And even after a nonsuit, though the general rule is to the contrary, yet a plaintiff under peculiar circumstances may have leave to amend and have a new trial, in analogy with the former practice. So held under the Code, in JBaloom v. Woodruff," where a plaintiff had been nonsuited at the circuit, on the ground that his declaration contained no count adapted to the nature of the case. It appearing that the defend- ant had not been misled ; that the cause had been once tried with- out any objection having been made ; that the statute of limita- tions had attached ; and that such relief would be manifestly in fiurtherance of justice, the court allowed the plaintiff to amend ' Bailey v. Kay, 30 Barb. 110. 40 Barb. 213 ; Roshoro v. Peek, 48 id 2 Saltersv.Genin.S Ahh. 353, SBosw. 93. 639, affirmed, 10 Abb, 478, 19 How. ^ Morrdlv. Ireiiuj Mre Ins. Co., 33 233 ; Gheeseman v. Sturgis, 19 Abb. 293 ; N. Y. 44(3. Cocks V. Radford, 13 id. 307 ; Kheldon « WHliurn v. Hubbard, 6 Lans. 11. Defense. — If the defendant wish to show, by way of defense, that a receiver, in supplementary proceedings, of the claim in suit has been appointed, he must plead that fact. That fact is not admissible to show the demand was not assigned to the plaintiff. Brett V. First, etc., 63 Barb. 610. Demand. — Where there is a contract to convey real estate, without fixing the iflme for a delivery of the conveyance, a demand thereof before suit is necessary, and the complaint must allege such demand. Mather v. Scales, 35 Ind. 1. Although no demand is necessary in an action against a wrong- doer, or one who does not obtain title from him hona fide, yet, if the original owner can reclaim the property from a lona fide purchaser, it can be done only after demand, and a reasonable time to comply with the demand. The bringing of a suit, in such case, is not a sufiicient demand. A purchaser from a fraudulent vendee, in order to hold the property against the original vendor, must be a purchaser in absolute good faith, and for value. If his title is tainted with any fraud, the court will not be particular to inquire into its generic character. It is enough that he is not an honest purchaser. Lyruili V. Beecher, 38 Conn. 490. 862 ADDENDA. Demurrer. ^ To a complaint containing two counts will be overruled, if either is good. If the allegations are not definite and certain, the remedy is not by demurrer, but by motion that they be made so Sale V. Omaha National, «<leas in bar abolished by Code 496 ''. both may be united in same answer 496 court should require separate verdict on each 496 if pleads in abatement only, not entitled to plead over 496 court or jury should assess damages and render final judgment 496 if pleads A and B necessary parties not sustained by proof, A alone is, 496 if pleads compromise of former suit, should plead former suit pending, 496 mere plea of former suit by third person not good, unless owned cause of action 497 how discontinuance perfected 497 non-joinder of dormant partner 498 when one joint owner of claim may sue for his share 498 if non-joinder of one partner not pleaded, cannot apportion damages. . . 498 otherwise, as to tenants in common 498 infancy, personal and non-joinder of infant good defense 498 misnomer to be taken advantage of by 498, 661 plea of non-joinder must show party living 499, 661 but plea that resides at particular place good 499 in equity cases 499 in admiralty 499 defect of parties must be pleaded 563, 569 so that defendant privileged from arrest, because attending court 661 or by motion for discharge 661 so that plaintiff, in a suit commenced by attachment, is a non-resident, 661 under plea non-joinder not good defense to show note given intention- ally to one of several partners 661 nor is non-joinder of partner, if nnte joint and several 661 nor if defendant did not contract aa-partner 661 nor if corporation that is stdl in existence 661 error in not doing so cured, if fact proven without objection 661 remedy, if uou-joinder of necessary party apprars by complaint 499, 663 even though complaint do not show he is li\ing 663 executrix marrying pending suit 663 Revivoe : in replevin 69 in case of death, marriage or other disability 98 when representatives have tio right of election 98, 851 reviving by supplemental complaint 98 what causes of action may be revived ■ 98, 99-105, 851 party seeking to revive must show, is suticessor, and how succeeds 99 when substitution refused 99 suit in county court cannot be revived by action iu another coui-t 99 infant born after suit commenced 100 effect of abatement 100, 851 when may proceed, notwithstanding death 100, 851 proceeding nunc pro tunc 100, 101, 851 908 INDEX. ABATEMEET AND IIEVIYOR— Continued: Revivok: paqe, abatement and revivor of ejectment 99 and need not make widow a party 100 but in action to remove cloud, heirs and representatives necessary. 100 period of abatement not computed as part of any time prescribed 101 when necessary to revive against successor of officer 101 against husband 101 foreign representative cannot revive 101 how and when revivor to be had 101, lOli whether defendant can revive, and when 102, 290, K>1 but may after judgment 102 so, if counter-claim 103, 851 when provision as to supplemental complaint does not apply 103, 290 what sufficient commencement to authorize revivor 102 sviit cannot be revived for costs only, unless taxed 102 if more than year elapsed, court cannot revive on motion 102 but supplemental complaint may be filed as matter of right 102 no revivor necessary, if on death cause of action passes to other parties, 103 practice in such cases 103 death bef oi'e verdict, in cases of tort 103 when representative of one partner may revive 103 action may be revived and continued as separate action against repre- sentative of deceased 851 action for wrongfully causing death survives 99, 103, 851 so for taking and carrying away property 851 if action commenced in name of dead man no revivor 103 how action revived in case of death after judgment 103 remedy upon judgment in such case 103, 104 proceedings on revivor against heirs 104 if receiver die, his successor may revive and how 104 practice on revivor by supplemental complaint ■ 104 new trial sometimes granted in tort, on condition shall not abate 104 effect of revivor 104 abatement and revivor at law and in equity discussed, and authorities referred to 104 supplemental complaint after year 285, 290 in cases of death, etc 286, 287 change of parties in interest -^ _. 286, 2.S7 on creditor's bill against husband and wife, if she die after issue, cannot have judgment for interest devolving upon husband by such death. . . 843 See Supplemental Complaint. ACCEPTANCE : how agreement for, pleaded 192 under statute of frauds, buyer must accept goods 675 ACCORD AND SATISFACTION: order on third person accepted and paid is 662 so payment in goods at agreed price 662 if debt, barred by statute of limitations, payment of part in full will not revive balance 662 if creditor acquire security of third person, is a valid 662 so if third persons raise the money and pay part 851 if accepted, to be in full, if paid, is though paid after maturity 662 so if debtor gives security 662 payment of part, before due in full, is a valid 602 accepting obligation of third person is not, unless expressly so agreed. . 662 even though receipt in full be given 662 otherwise if such agreement 662 so of check of debtor 062 parol release without consideratiou, void G63 one of two joint creditors took part in full of his half 663 natural love and affection, by parent, good consideration 663 mere agreement by third person to pay debt invalid, uidess novation. . . 663 or performance 663 payment of part by debtor after due, no satisfaction, though agreed to be taken in full 665 unless compromise of honestly disputed claim 663 INDEX. 909 ACCORD AND SATISFACTION— Co?itmuecJ: page. new agreement no bai-, unless performance 663 or taken in lieu of former 663 e/xeoutoiy agreement for no bar, though performance tendered 663 so a plea that plaintiff's claim allowed on settlement invalid 663 settlement for injuiy valid, though damages subsequently accrue 663 repairing injury to satisfaction of third person, good 663 plea of, not supported by proof of tender 701 See Payment. ACCOUNT : when action of , lies 291 when settled, opened and how far 391 items of, need not be set out 809 how to be obtained 809 answer to be to complaint, and bill of particulars no part thereof 809 ACCOUNT STATED: count in 197-204 when action lies 205 ACT OF GOD: def euse that prevented by .563 excuses performance 670 ACTION : when may be severed 126 once accrued, only discharged by satisfaction 458 ACTION ON THE CASE: . what it was and how tar now exists 216-321 See Case. ACTOR: when restrained from acting elsewhere 353, 871 specific performance of agreement 353 ADMIRALTY: pleadings under Code analogous to pleadings in 259 ADMISSION : any allegation not denied is admitted 505, 796 every material allegation in conipluiut not denied by answer, admitted, 796 so every material, of new matter in answer constituting a counter-claim. 796 new matter in answer not constituting counter-claim, deemed contro- verted 796 such admissions must be confined to allegations of fact 796 does not include allegations as to intention 796 or legal effect or construction of an instrument 796 nor prayer for relief 797 the allegations must be vuUeiial 797 not deemed material unless an issue could be taken thereon 797 every allegation deemed immaterial, except naked facts on which right depends 797 every allegation which must or may he alleged in good pleading, material, 797, 798 every thing else immaterial 797 facts in mitigation or aggravation, usually immaterial 798 iiniitting to deny such matter not tantamount to admission 798 allegations as to damage not admitted by failure to deny 798 plaintiff must prove amount of damages or only entitled to nominal . . . 798 so in trover as to allegations of value of property 798 general denial iu trover, is of conversion and of plaintiff"s title 798 and defendant may disprove plaintiff's title 798 cannot dispute a material fact admitted by not being denied 799 but amendment may be allowed so as to deny 827 defendant not answering, not affected by answer of co-defendant, 799, 802 till- purpose of confession and avoidance not binding as admission 799 803, 803 910 INDEX. ADMISSION— Continued : page. admission construed most strongly aRainst defendant 799 if says agreement incorrectly stated and specifies some particulars others admitted 799 80 denial that defendant has broken agreement, "otherwise than as hereafter stated," 800 in such case, onus on defendant 800 if no denial but affirmative defense, onus on defendant 800 denial of whole complaint invalid ; should be of each allegation 800, 803 negative pregnant 800 must deny knowledge or information, or admitted 800. 803 must deny substance of allegation, and if does, is good 801-803 and remedy by motion and not demurrer 801 admission only applies to the issues on thai pleading 802, 811, 812 remedy when part of cause of action admitted 803 how far denial aided by rule that pleading to be liberally construed 807 after made, amendment by denial only allowed where clear mistake 799 See Denial. ADVANCEMENT : good defense to action to recover real estate 664 though should be primarily cliargeable on real estate 664 that was may be proved by declaration of parent 664 unless contradicts a writing 664 may be made such by a will, though note taken 664 ADVERSE ENJOYMENT: must be pleaded 564 ADVERSE POSSESSION: for twenty years public purpose 480 how to be alleged 570 grant of lands so held only void as to that part of lands 661 See User. AFFIRMATIVE RELIEF: defendant may have 587 as foreclosure of a mortgage 587 fraud in obtaining a .iudgment 587 mortgagor may ask to redeem 587 and reformation of a contract 5S7, 588 AGENT: how contract by, averred 194, 195, 'iXi liable for fraud, though principal sued 293 when and how far warrants his authority ;,'9;J, 393, 319, 470 how must contract to bind principal :^2 when liable, personally, and when not 393, 393, 852 how agent to plead, contracted for principal 293 principal bound to indemnify <-. 393 unless agent knew act to be a willful wrong 293 or do unauthorized act 293 if seeks to recover costs recovered of sub-agent, must aver them spe- cially 293 cannot maintain action in own name 293 when replevin will not lie against 309 agent purchasing as, may change order for self 309 purchasing scrip and transferring to own name 310 it party knows facts as to authority, no warranty 330 Uow far principal may ratify demand 323 one party cannot act as agent for other 339 to insure, must obtain written policy 440 but if compelled to pay principal entitled to subrogation 440 liability for selling property of another 400 liability of seller tor warranty, by 4T0 when impliedly warrants, title of property sells 473 in trover, may defend if evicted 473 to sell, sold to another house of which he was member 493 INDEX. 911 A.G-ENT — Continued: page. agent must faithfully serve principal 493 may receive orders for goods of another house 493 revocation of authority need not be pleaded 567 hovf far statute of limitations a defense in action for account 683 not party In interest 757 when to sell, liable for collecting draft 843 owner of paper collected is of proceeds so long as can be traced 843 whether to sell for certain price guilty of trover in selling for less 843 powers of special limited, and, unless authorized, cannot assume perils of navigation 853 claimed to borrow money for principal, but used it himself 853 See Peincipajj and Agent. AGGRAVATION: facts in, usually immaterial 798 AGREEMENT : assignment of patent right to be paid for. If works 393 none, if minds of parties do not meet 378, 413 to lease for best rent 433 seller signed papers, buyer did not , 465 when action does not lie on breach of, to extend payment 693 to pay when convenient 693 to pay in "satisfactory notes" 693 iSee Bond ; Covenant. Illegal Contkaot. Impossibility". MODIEICATION or CONTRACT. Rescission. Subscriptions. Sale. Undertaking. Vendok and Vendee. AIDER. See Defects. ALIMONY : when may have, though parties living in same house 393 when suit for, will not lie, unless divorce asked 393 ALLEGATA ET PROBATA: common-law strictness, that allegations and proofs should correspond, abolished 846 See Secundum Allegata. ALLEN V. PATTERSON : considered 171, 199, 303 ALTERATION: need not be pleaded, if execution of instrument denied 565 ALTERNATIVE : how far pleader may ask for alternative relief 229 but prayer for relief must not be inconsistent 339 when pleading cannot be in 371 remedy when allegations in 373 AMBIGUOUS: expression may be explained by context .804 AMENDED ANSWER. See Amendment ; Supplemental Answer. 912 INDEX. AMENDMENT: paob. only on payment of costs 154 when allegation of performance and proof of waiver 181 of amount claimed or prayer for relief 275 merely verifying a pleading is not 283, 714, 822 but court may allow such an amendment 283 when proper instead of supplemental comi^laint 284, 285-287 adding or striking out a party 285 where performance alleged may allow facts excusing 405 from use and occupation to one against, as assignees 416 when alleges performance and shows waiver 566 party brought in by, may plead statute of limitations G82 if deuRirrers and answers together leaving out one, not 714 remedy in such case 823 need not reply 822 by being allowed to withdraw answer and demur 769, 775-778 is matter of discretion 776, 852 not allowed unless court satisfied pleading interposed in good faith . . . 776 nor if leave to do so has been once given 776 nor if apparent, party can i'n no event succeed 776 what may be set up on leave to amend 776 although court may grant leave to amend, cannot compel it 776 on motion on ground pleading frivolous may amend, of course, before time expires to amend 778 and if corrected by amendment, motion denied without costs 778 not allowed to retract admission except on clear proof of mistake 799 terms on allowing to set up usury, etc 852 how and when allowed before the Code 817, 818 provisions of the Code as to SIS right to amend pleading, of course 818 may be before pleading answered, or before time allowed to answer 819 if by mail, has double time 819 amended complaint may be served after amended answer 819 amended pleading takes place of original 819 party cannot disregard amended pleading 819 remedy if amendment claimed to be frivolous S19 amendment does not prejudice proceedings already had 820 if default taken before amendment, valid S20 right to amend waived by noticing cause for trial 820 cannot be made without paying costs, if adversary has moved for irregu- larity S20 but may before service, though motion papers prepared 821 may amend, of course, after motion on ground pleading frivolous 821 may insert any proper matter on amendment 821 . but may not add or strike out parties 821 may set up different claim, cause of action, or defense 821 may amend where general denial only pleaded S21 matter occurring alter pleading not proper S22 amended pleading to be served on all the parties 822 cannot amend, of course, after trial commenced S:i2 amended pleading must not be identical in legal effect with former 822 when court may allow SS Code and Revised Statutes both in force 823 may allow change from contract to tort, and vice versa 824, 825, 877 from trover to replevin 824 to set up counter-claim 825 to increase damages claimed 825, 833 but only on condition of new trial S33 but not to make an entire new suit between entirely different parties . . 825 that object should be obtained by discontinuance 825 but may, by discontinuing against infant, without costs 825 l)y striking out a defendant S:i> by ad fling a defendant even after appeal 826 by adding a plaintiff S2fi a mistake in name 827 by st7-iking out a plaintiff Si7 by adding a next friend 827 by bringing in parties at any time 827, 830 terms of allowing 827, S29, S52 by allowing allegations material to cause of action or defense 827, 830 INDEX. 91i3 AMENDMENT — Continued : page. auoh not usually allowed after judgment 828, 830 how and when granted on trial 828, 830 difference bet «yeen allowance of, before and on trial 829 difference between trial at circuit and before referee 829 by setting up unconscionable defense 830, 852 if complaint shows cause of action, not barred, but proof shows is 830 if facts pleaded, as to relief prayed for 830 if issues changes by, reference may be vacated 830 or referee may be changed 830 but not necessary to commence trial de novo unless referee changed 830 referee has same power to allow as court 830 party against whom granted to be allowed to auswer 830 and may set up new or any answer pleases 831 copy of proposed amended pleading should be served with moving papers , 831 or incorporated in affidavit 831 and affidavit for should usually be made by party 831 not allowed to set up facts occurring after suit 831 allowance of, usuallj"" matter of discretion 831 appeal lies to general term from order on motion 831 but not court of appeals 831 but general term not to reverse except iu clear case 831 court should be satisfied good excuse for not before pleading 831 or that party, to accomplish some other object, did not intentionally so plead 831 or that facts were not known to him 831 but if j)M(S durrien is error, to refuse in proper case 832, 887 party moving to be free from laches 832 appellate court wiU not reverse for defects not affecting substantial rights 832 if litigated on merits, courts liberal in granting on appeal, in favor of affirmance 833 but must be consistent with equity 832 and will not be granted for reversal 832 so variance disregarded, if not objected to, till proof closed 832 new count may be allowed on appeal 832 so after a nonsuit under proper circumstances 832 allowed with great caution after trial 833, 834 except as to mere formal amendment 833 amendments at trial 833 is matter of discretion 834 may be allowed on reversal 835 on overruling demurrer 835 must appear to have been interposed in good faith 835 so plaintiff may be allowed to amend 835, 836 and in many cases should be 836 an appeal court may make same amendments as court below 836 aud where error does not go to merits will 836 in furtherance of justice in cases of variance 839 in actions to determine claims to real property 857 if pleading states facts, others may be stricken out 899 A.NIMALS : owner of, when liable for injury by, if knows of vice 294, 853 and negligence need not be averred 394, 852 gist of the action is keeping of animal after knowledge 853 what sufficient complaint 852 scienter should be alleged 294 unless animal trespassing 294 when breaking and entry gist of action 294 scienter not necessary, if dog kills or woxindx sheep 294 otherwise, for chasing and worrying 294 although, if scienter is admissible, to increase damages 294 one willfully setting dog on animals, liable to injury he inflicts 294, 454 but father of minor is not, unless he approves act 294 liability of owner of dogs which fight 295 offering to settle admissible to show scienter 295 what sufficient evidence of scienter 295 115 914 INDEX. ANIMALS — Continued : page. owner of wild animals, how far liable for injuries by 295 when owner of, liable for injury done by, to one on his premises 295 who presumed to be owner 295 what averments necessary in action against possessor 296 not sufBcient, belonged to hired man 296 scienter not necessary in oases of gross negligence 296 what is proof of such negligence 296 one who, by meat, tempts dogs to destruction, liable 298 diseased, allowed to run at large 385 injury by, while trespassing 448 See Nesligencb. ANSWER: defect of parties plaintiff, when necessary 80 for misjoinder of 80 to be served within twenty days after service of complaint 495 what it was before Code, and contained 495 formerly, defenses to jurisdiction in abatement and in 6ar 195 if pleaded in abatement, waived plea to jurisdiction 495 if in bar waived, plea in abatement 495 unless arose after commencement of suit 495 plea in bar : 496, 500 formerly by way of traverse 500 and confession and avoidance 500-504 nature of plea iu bar at law 500, 501 in chancery 501 changes by Code . ' i 502-504 formerly required to be single 503 and certain 503 under the Code 504 to set up affirmative defenses 505-511 what formerly admissible under general issue 504 under Code, defendant to set up affirmatively aU aflBimative defenses, 506, 507 when want of consideration need not be alleged 507 if agreement denied, plaintiff must prove valid one 507 what defenses available under denial 506-509 difference between plea and answer 553 when may interpose defense after suit, but before answer 635 of one defendant no benefit to another 734 rule that must answer entire cause of action 812 rule does not apply to partial defense 813 may supply defect of an averment in complaint 833 See Counter-claim; Denial; Defense. ANTICIPATING- DEFENSE : not proper iu complaint 354 APPEARANCE: by natural persons 53 infants 53, 55 corporations 53, 55 married women 53, 55, 59 idiots, lunatics, etc 54, 56 trustees 56 when may proceed, though all not served 62, 156 how attorney should appear to correct irregularity 157, 158 APOTHECARY: See Druggist. APPEAL: how far amendments allowed on 832 APPRENTICE : master may chastise 665 how far that would not be thought good defense 683 See Parent and Child. INDEX. 915 APPURTENANT : page. when grant of mill carries raceway 478, 479 ARBITRATION : pending suit, efteot of, and how to be taken advantage of 659, 661 how, of award 659 remedy where award fraudulently obtained 338 agreement to lease at rent to be fixed by arbitrators 430 notice of time and place of 487 See WOBK AND Labob. ARCHITECT : how far his decision conclusive 487, 488 566 WOBK AND LABOB. ARGUMENT: matters by way of, improper 269 meaning of 270 ARGUMENTATIVE : answer not to be 605 ARREST : statement of facts showing right to 250-253 when private person may arrest without warrant 331, 333 when officer may 331, 332 on telegram 332 how privilege from, to be taken advantage of 661, 852 sheriff not liable for arresting privileged person 853 sheriff may justify for not making arrest of defendant exempt 664 officer Justifying, without warrant, should plead facts justifying 664 See False Impeisonment ; Justieioation. ASSAULT AJSD BATTERY : growiug out of gathering fruit from tree on or near line 296 physician not liable for restraining patient having delirium tremens^ 296 may deny and justify ^ 585 trespasser making noise and refusing to leave 664 what plea of .son assault demesne must show 665 if plaintiff prove excess of force, no defense 665 plaintiff entering defendant's close and taking his property 665 degree of force depends upon exigency of occasion 665 ejecting one disturbing religious meeting 665 from burying ground. Connnonwealth v. Dougherty, 107 Mass 343. master may chastise apprentice 665 may prove long-continued provocations 697 ASSENT : none, if mind of parties do not meet 378 when minds of parties do not meet 413 seller signed papers, buyer did not 465 ASSIGNEE: when liable, personally, for rent 297 what general, for creditors should allege 397 of mortgage, what must allege in foreclosure 297 liable to lessor for damages compelled to pay for breaches by 298 one partner assigning policy to another 298 complaint in such case 298 of foreign executor or administrator gets title 298 may set aside fraudulent transfer 338 tender of performance must be to 406 may have contract reformed 414 how to be charged for rent 415 See Rent. 916 INDEX. A SSIGNMENT : page. what causes of action are assignable under the Code 65 when tort may be waived and cause of action assigned 65 widow's right of dower 67 rent in arrear 67 when expectancy or prospective demand 1 67, 68 extra compensation to contractor 67 vested interest subject to being defeated 67 claim against foreign government for illegal capture 67 of entire claim in parts 68 of chattel mortgage 68 what causes of action assignable 68-71 what not assignable 71, 72 one defendant became assignee of claim 113 assignee of judgment when injunction sought 137 assignee of mortgage 131 must be alleged 225 of mortgage without bond 68, 232, 233, 297 purchaser under void foreclosure is assignee of mortgage 412 none, of right of action for seduction 426 when tender must be to assignee 445 remedy of assignee against assignor, if part of demand assigned has been paid 473 mortgagor rendered services to be applied on mortgage 665 assignee may avail himself of statute of limitations to set off 680 mortgagee woi'ked for mortgagcn- in payment; defense admissible after, 688 to whom tender of contract to sell must be made, if assigned 703 how assignee must tender 703 See Assignee; Assignor; Parties PiiAiNTiir; Bent. ASSIGNMENT FOR BENEFIT OF CREDITORS : parties in action to carry out 81, 114, 127 ASSIGNOR: when may be made a defendant 107, 114, 115, 131 See Rent. ASSUMPSIT : action of 197-204 if party has performed, may declare in 171, 193 otherwise, if has not performed 171, 193 when lies to recover back money paid through fraud or mistake, etc. : 193, 197 but not lost at gambling 192 AT ONCE: agreement to do act at once and without delay 410 ATTACHMENT : how fact that plaintiff in suit commenced by, is a non-resident taken advantage of ." 661 ATTORNEY : who assists in fraud 113, 113 verification not to before 283 remedy 283 bound to deliver papers to client in proper coiulitiou 298 when liable for negligence 298, 299 what no proof of negligence 299 liable to pri nter for fees 299 so to sheriff 299 but not to referee, except on agrc^ement to pay 299 when liable to one whose property sold on exigent ion 299 when not liable for perfecting judgment iigaiiist wrong person 299 or causing wrong person's goods to be sold 2!)9, 300 liable for cninniencing suit in party's name without authority 300 what must aver and pi'ove in suit tor sefviees 300 may recover against executor or guai'dian personally 300, 665 INDEX. 917 A-TTORNBY — Conldmied : page. demand ueoessavy in action for moneys collected Ijy 333 but not for legacy received by him 333 liable for malicious prosecution 371 rights of, when one employed and takes partner 403 remedy against mnker or another tearing up note 450 liability of one wlio issues execution i5:i, 453 may recover back illegal costs xjaid to, if not taxed 468 otherwise, if taxed 468 agreement by, to carry on suit and pay expenses 675 letter to next friend about plaintiff privileged 679 when statute of limitations commences to run against 683 he may sometimes reach money collected on a judgment summarily 682 when tender to, good 703 See Pbincipal and Agent. AUCTION: when warranty at sale by 472 AUCTIONEER: by mistake sold horse owner had sold 456, 458, 460 when can only recover statutory compensation 300 AUTHOR: when may recover of publisher for issuing incorrect edition 300 See. COPTBIGHT. AWARD : when fraudulent, may be set aside 139 if void, does not bar action on original cause of action 193 what sufficient averment of making and notice 300 when notice of, necessary 393 must plead facts which render invalid 563 that made is a bar 564 how to be pleaded 568 invalid if abritrators proceeded without notice 665 good defense that arbitrators made a clerical mistake 665 BAIL: sheriff liable as, and no defense defendant insolvent , 665 BAILEE: trover by 313 complaint against 220 BAILMENT : when bailee or bailor party in interest 74, 75, 76, 853 rate of damages in action by 75, 76 if bailee breaks wagon, not liable for having it repaired 453 when general owner, and when bailee may recover 300, 301, 853 damages in such actions 301 damages in actions by pledgfie 301 when judgment in favor of one bars suit by other 301, 853 when pawnor may sue 301 complaint in such cases 303 damages in such cases 303 when bailee not liable for negligence ot servant 303 liability of hirer of horse 303, 853 liable, if drives horse farther than hired for 303, 853 bailee liable for negligence of any one to whom intrusts duty 302 liability of baUee who has offered to deliver property 454 owner took his wagon, but another's whiffletrees 454 bailee must return to baUor, and not to place where got property, 302, 458 853 and, if instructed not to deliver except on written order, must not deliver even to wife 853 918 rwDEX. BAILMENT — Continued : page. demand necessary 458 unless delivers to third person 459 infant hired horse for one place, and drove to another 459 bailee making fixture of personal property 460 good defense, that property belonged to third person, and he took it, 308, 666 or taken under process against true owner 308, 6(i6 and so, if taken und er process against bailor 308, 666 if latter immediately notified thereof 308, 666 though not, if guilty of negligence in not delivering 666 or do not notify bailor 666 consignor directed to be delivered to third person 666 rights of, in regard to horse hired on Sunday 6Y4 watchmaker, for watch left with him for repairs 853 See Bank; Cakrieb; Railroad. BANK: when and how president of, may sue 96 when and how bank may sue 98 liable for disclosing state of customers' accounts 303 not liable for deposit until demand 323 unless right denied 333 recovery on lost bank bills 369 no warranty by, though says to drawee, holds bill of lading 471 liability for loss of box or valuables intrusted to, for safe-keeping. . .303, 853 BANKRUPT DISCHARGE: if foreign debtor must plead facts showing validity of 666 how domestic pleaded 666 not good defense to action, to rescind for fraud 666 good, though creditor had no notice, if neglect not willful or fraudulent, 666 so, if creditor consented to omission 666 if neglect to notify, willful or fraudulent, invalid 666 if too late to plead, may have relief by motion 853 BANKRUPTCY: in action on contract barred by discharge, must count on new promise, 206 how and when assignee of, may bring trover 213 BAR: answer in, when to merits 496, 500 BASTARD : putative father paying, believing mother pregnant 378 when mother of, may recover for services 401 promise of lather to pay mother, if will not charge with 426 BILL OF EXCHANaB : averment and proof, where payable at particular place 303 writing, "payment stopped" on 324 parties to, may be jointly sued 124 how far applies to one non-negotiable 125 does not apply to guarantor 125, 137 See Checks ; Lost Bills or Exchange ; Pbomissobt Notes. BILL 01" LADING: See Commission Mebchant. BLACKMAILING: editor liable lor charging police officer with 678 BLANK : name of obligee so lelt 304, 895 maker of check or note negligently leaving 672, 864 name ol payee in blank 699 BOAT: lien for raising sunken 422, 874 INDEX. 919 BONA FIDE: page. what purchaser claiming to be, must aver and prove 394 that party is a bona fide purchaser must be pleaded 564, 854 and must allege want of notice at time of payment 664 not sufficient to secure payment 564 pledgee is not a bona fide holder to shut out equities 691, 887 when note overdue 692 of negotiable paper when " payment stopped " erased 308 only entitled to be protected for amount paid 886, 887 evidence paid only part, admissible on question of 886 BOND: to expend certain sum for support 303 liability and damages on bond to indemnify or pay 303 allegation on, where condition may elect all due on breach 304 with blank for name of obligee 304 such bond may be reformed 304 for honesty of another (see p. 344) 304, 896, 897 when recovery to be for penalty of 854 See Covenant; Stjkett. BREACH: how to be aUeged 170, 181, 182, 183, 304 allegations as to, to be liberally construed 807 when, of warranty, particular kind of trees or wUl bear particular fruit, 901 See Undbktaking. BREACH OP PROMISE : wUl not lie if woman falsely represent has never been married 325 that plaintiff prostituted herself after promise 564 that plaintiff in habit of becoming intoxicated 567 lies, though defendant married, if plaintiff ignorant thereof 854 whether promise to marry after wife's death valid 854 BROKER: action against, for fraudulently selling 142 when, for sale of real estate, etc., may recover 304, 306, 854, 855 purchasing scrip and transferring to own name 310 remedy in such cases 310 necessity of notice if intends to sell 393, 854 if sells less than price instructed to, liable 667 how and when, may sell for not keeping up margin C85 sale to be delivered at seller's option 685 tender on agreement to purchase bonds 703 when cannot revoke agreement to purchase as without notice 854 if, sells without right, chargeable with prolits 855 bound to render account, and if refuses, loses lien 855 acted for both parties 854, 855 in action for selling, must show property has since risen in value beyond price sold for 855 See Notice. BUILDING: liability of owner for extra work 492 See Akohitect; Work and Labor. BY-LAW: how pleaded 436 See Oedinancb. CANADIAN OXTDGMENTS : defendant in, may set up any defense 667 except when interposes and litigates it ew CANAL COMPANY: liability for rock falling into and injuring boat 385, 386 920 INDEX. CANCELLATION: page. of obligation given by surety 699 CARGO : lien on, for raising sunlien vessel 679 CARRIER: when party in intereat 74 complaint against 318, 219 n ot liable for delivery to fraudulent vendee 306 liability for storing goods before destination though dispatch be dan- gerous 306 may assume package of value seems tobe 306 when not liable for special damages not transporting within definite time 306 property sent mixed and wrong, property delivered 306 liability for delivery to wrong party, but at place to which directed 307 but see Price v. Oswego, etc., R. R. Co., 50 N. Y. 213. liability for fraudulently representing character of vessel 307 when not liable for goods taken by process of law 308, 066 duty in such cases 308, 666 not liable for delivering voluntarily to true owner 308, 666 duty of, as to delivery and notice of arrival 308 damages for not carrying by ship contracted to 308 or within agreed time 308 remedy against, for goods lost 457 may insist upon carrying and full freight 485 must notify consignee of arrival of goods, and if not caEed for, store them 667 but not allowed to store until made efforts to find consignee 856 if from foreign port, must notify and store according to custom 667 if owner signs statement of value of property estopped 670 if sued for conversion not sufficient to prove negligent loss 811 in such case should count upon defendant's duty and neglect thereof.. 841 but in such case, proof that carried property but refused to deliver, insufficient 841 consignee, after notice, bound to take away promptly 856 if two occupy same warehouse delivery therein by one good to other. . . 856 if exempt, except for fraud, etc., plaintiff must show 856 liability for not unloading cattle 856 though first carrier contracts for restricted liability, second not pro- tected 856 unless first agrees to carry through 8.57 liability for not delivering goods at particular time 902 See Express Company ; Impossibility ; Negligence ; Raii,road. CASE: distinction between and trespass 453 CASE, ACTION ON : what it was, and how far still exists 316-321 CAUSES OE ACTION : must be separately stated and numbered 148, 264 exceptions to rule 265 remedy if not 148. 3(>4, 274 each must be perfect and complete 149, 262-264 what indicates separation of 149, 263-264 single cause of action cannot be separately stated 149, 363-368 all consequences of one injury are but one cause 149, 150, 363-365 may set forth all grounds of liability 265 otherwise, if not one transaction 305 should show how arose out of same transaction 306 when and how far more than one count on same cause 150, 365, 366 remedy in such case 150 remedy when several causes .ioined in one count 151, 264, 274 if alleged with co^itiimando, may compel separate statemi^nt of 322 what is a separate statement of 639, 640 INDEX. 921 CAUSES OP ACTIOIJf— Continued: page. if uot separately stated, remedy by motion 753 to be numbered and separately stated 809 remedy if not 809 See Demiterek ; Joindbr of Actions. CESTUI QUE TBUST: suing trustee 117, 127 See Trust. CERTAIN : issues must be, and meaning of term 782 CERTAINTY: degree of, required 228, 257, 259 remedy for uncertainty 268 CHARGE AND PRETENSE: See Irrelevant Matter. CHARITY: court win not marshal assets in favor of 373 CHATTEL MORTGAGE: when creditor may sell interest of mortgagor 301 mortgagee selling, not liable to receiver, subsequently appointed 461 In action for conversion, defendant may ask to redeem 587 See Redemption. CHECKS : payable, to bills payable or order 308 words "payment stopped " erased and transferred 308 See Payment. CHILD : injured by machinery 386 injured by gunpowder sold to 386 CITY: See By-Law; Municipal Corporation; Town. CLAIM AND DELIVERY: lies In all oases where replevin did 308 property returned before service of summons 309, 857 returned after suit, but before trial 309, 8.57 in cases of fraudulent purchase 309 purchaser and assignee may be sued jointly 309 lies, though party has parted with possession 309 unless purchased as agent 309 i-equisites of complaint for 309, 857 when will not lie for scrip 310 while suit for, pending, plaintiff cannot maintain against defendant 310 complaint must show right of property and of possession 857 See Replevin. CLAIMS TO REAL PROPERTY : how determined 237 what defenses may be set up 238 may proceed by notice under statute 238 same right to amend as in other actions 857 what complaint must show 857 CLOUD UPON TITLE : must not show invalidity on its face 310 but is, if evidence aliunde required 310 as where deed should have been to plaintiff instead of defendant 310 to determine amount due on mortgage 310 and lies, though complaint erroneously allege fully paid 310 remedy for, by tax 442 See Quia Timet. 922 INDEX. COLOR : PAGE, giving color in plea by confession and avoidance 811, 812 COMMISSION MERCHANT OR FACTOR: Tvhen cannot set up rights of third person 253 liability on contract to sell for highest market price 311 liability in absence of special agreement 311 liability under special instructions 312 rights and liabilities, where has made advances 312, 858 complaint in action to recover deficiency 312 if sells for less than price instructed to, liable 667 consignee refused to accept draft, sold property and credited to con- signor 857 merely making advances does not prevent consignor from revoking authority 858 agreements not to do so may be shown by circumstances 858 See Broker ; Factor. COMMISSIONERS OF HiaHWATS : when can bind successor by borrowing money 311 when liable for neglecting to repair highways 311, 869 when may compel railroad company to restore highways 311 or may proceed by mandamus 311 See Highways. COMMON COUNTS: how far may be used 197-204 COMMON OR GENERAL INTEREST : what parties may join, and what is 81-84, 85-87, 97, 894 COMPLAINT: requisites of declaration under old practice 153, 162 requisites of biU in equity under old practice 153, 162 requisites of complaint under Code 153 requisites of title 154 name of court 154, 155 whether cured by naming in summons accompanying complaint 155 county designated for trial 154 names of parties 154, 155, 158 complaint good if these requisites in body of complaint 151 how defect in either reached 154, 155 after motion to correct cannot be amended without paying costs 154 if court of limited jurisdiction, county need not be named 154 should show capacity in which parties sue or are sued 155, 158 how such capacity expressed 155, 156 when capacity not restricted 156 if sues generally, may declare in representative capacity 156 if sues as representative, cannot declare generally 156 when severally liable, may declare against a portion of the defendants, 156 if plaintiff ignorant of defendant's name, how described 157, 158 how described in partition 158 allegations as to such parties 158 does not apply if plaintiff knows name 157 when party known by two names, may be sued by either 157 how child not named, designated 157 if variance in name between summons and complaint, how reached 157 must correspond with the summons as to relief asked 158 how variance reached 159 how waived 159 form of summons as to relief asked 158 how facts to be stated 161-163 all facts which, if denied, plaintiff must prove to recover 163 aU material and issuable facts 163 must show consideration of contract 164, 165, 166 how to be alleged 164, 167 In some cases implied, and when 164, 166, 167 in action against carriers 164 INDEX. 923 COMPLAINT— Cowtmited. page. order not negotiable 164 note not negotiable 166 mutual promises 165 consideration may be executed or executory, and how stated 165 variance between allegations and proof 167 if nominal stated good, though not paid 167 recital of, estops party 168 when surrender of paper furnishes 168 when compromise furnishes 168 allegations as to 170 compromise not to oppose will 169 "value received" 168 "agree " 168 assumption of mere ideal liability 168 assuming inadequate liability 168 debtor's promising to pay creditor's expenses 168 expenses examining property as security for loan 168 expenses procuring money to loan 168 to forbear prosecution of a claim 168, 169 transfer of void instrument 168 to be recanted from void contract 168 where specific performance could be enforced 169 signing obligation of third person after delivery 169 promise to keep money already due and pay interest 169 promise to forbear in consideration of new security 169 deduction of, will give security ._. 169 plaintiffs paid defendant's tax by mistake 169 assignee of lease assigned it, reserving rent 169 lessor taking covenant to pay 169 breach must be aUeged 170, 181, 183, 183 how promise to be aUeged if exception \... 170 if contract to be performed after happening of particular event, how aUeged 170, 171 how reasonable lime alleged 170, 171 how fact that debt due shown 171 how liability of members of joint-stock company to be averred 171 allegations in actions upon promissory notes 171, 173 as against indorser 172, 173, 180, 181 to show plaintiff is party in interest 173, 173 if party has performed contract, may declare in assumpsit 171, 192 otherwise if has not performed 171, 193 indefiniteness in Allen v. Patterson not allowed, on motion 171 allegation sold " as manufacturers " not sufficient to show they were 173 written instruments, how declared upon by copy 171-179, 181, 183. 186 how by substance 181, 182, 181-196 conditions precedtent, how alleged 179-181 performance, how alleged 179-181 how refusal alleged 179 allegation and proof of excuse 180 allegations as to waiver 180 tender, allegation of, and proof of excuse 179, 181 how modification of contract shown 180 complaint must allege a promise 183 and how 184 in case of contract by 184 facts and not conclusions to be pleaded 18^196 what are facts 18^-196 to be pleaded according to legal effect 184r-196 what is conclusion 184-196 evidence of facts not to be pleaded 187 when facts pleaded, any proper judgment thereon may be rendered. . . . 190 every fact which plaintiff must prove to be aUeged 193 answer may supply defects in 334 in equity , 337-329 See Belief. COMPROMISE : offer of, when admissible to show scienter 294 agreeing to pay, if wiU not oppose, wUl 349 924 • INDEX. COM PROMISE — Continued : page if wiU not move to set aside sale 350 wheu, of former suit should be pleaded as former suit pending i96 judgment for part payment, and agreement to pay balance 560 See AocoBD and Satisfaction; Consideration. CONCLTJSIONS: not to be pleaded, and what are 184-196, 216, 269, 570 may be stricken out as irrelevant 592 that defendant claims interest is 237 CONDITION: vrhen must convey subject to, and not to covenant running with laud. . 405 CONDITIONS PRECEDENT: how alleged 179-181 not to be set out in hcec verba 228 CONDONATION: what revives 142 should be pleaded in action for divorce, and is a defense 669 CONFESSION AND AVOIDANCE : former plea by way of 500 admission in, to be taken as, If otherwise denied •. 799 what is good plea by 811, 812 CONSEQUENTIAL DAMAGES: SeeSPEOiAi, Damages. CONSIDERATION: when, must be alleged 164, 165, 166, 858 how to be alleged 164, 167 in some oases implied, and when 164, 166, 167 in actions against carriers ' 164 order not negotiable 164 note not negotiable 166 mutual promises 165 may be executed or executory, and how stated 165 variance between allegations and proof 167 if nominal stated, good, though that not proved 167 recital of, estops party 168 when surrender of party furnishes 168 when compromise furnishes 168 allegations as to compromise 170 " value received " 168 "agree " 168 assumption of mere ideal liability 168 assuming inadequate liability 168 debtor promising to pay creditor's expenses 168 expenses to examine property as security for loan 168 expenses procuring money to loan 168 to forbear prosecution of a claim 168, 169 transfer of void instrument 168 of ferry franchise held ultra vires 858 to be recanted from void contract 168 where specific performance could be enforced 169 signing obligation of third person after the delivery 169 promise to keep money already due, and pay interest 169 promise to forbear in consideration of new security 169 deduction, if will give security 169 plaintiff paid defendant's tax by mistake 169 assignee of lease assigned it, reserving rent 169 lessor taking covenant to pay 169 mortgagee assigned mortgage, taking note for interest 169 if will not move to set aside sale 350 agreement, after lease, to repair without 364 tenant selling goods at auction on landlord's promise, insnlEcient. . .365, 6G7 when for warranty 472 INDEX, 925 CONSIDERATION — Continued : page. want of, ueecl not be alleged where plaintiff must prove 507 if defendant relies ou failure of, must plead it 667 so partial to be set up 550, 563, 669 and must allege, whether pai-tial or total 669 so, if interposes an agreement, which does not show, must aver 667 prnuiise by lessor to make deduction from rent, for damage from leaks, without 667 bona fide compromise furnishes good 168, 170, 668 and plea that nothing due, no defense 668 claim must be doubtful, and not clearly without foundation 668 surrender of agreement, equity would compel to surrender not 668 agreement to forbear prosecution, without attempt to compromise 668 agreement, if will, not oppose wiU 169, 349, 668 but must aver and show some ground for opposing 668 agreement to pay for releasing from void contract 668 agreement by one joint debtor to pay entire debt, good 668 agreement in consideration of marriage, if no divorce, good considera- tion, though husband impotent 668 promise to pay note, to which name forged, without consideration 669 in suit on note for patent, another issued after given 669 if sets up entire want of, fails if any, however small 669 debtor promising not to pay till certain time, and pay interest, not g(jod for agreement to extend time of iDayment 673 nor is payment of part amount due 672 See AccoED and Satisfaction ; Illegal Contract ; Undebtaking. CONSIGNOR AND CONSIGNEE : which real party in interest 74, 858, 859 when carrier not liable for delivering to third person 666, 856 how far that property shipped in consignor's name, by mistake, good. . . 683 CONSOLIDATED ACTION: no new complaint necessary in .312 ho (V tried, and judgment-roll in 312 costs of only one action, unless special provision 313 CONSPIRACY : employer compelled to pay, to prevent stopping business 670 CONSTABLE: what actions against, may be joined 140 CONSTRUCTION : if agreement to lease for best rent 433 if equivocal to be most unfavorable to party pleading 803 this rule applies only before answer 804 but language to have reasonable intendment 804 if expression capable of two meanings, that to be adopted which supports 804 if can be held good by any state of facts consistent witli averments, to be 804 if alleges enjoyed premises need not allege, did so coniinuaUy 804 extent of rule that words to be construed according to ordinary mean- ing 804 if capable of two meanings, that to be adopted which upholds 804 if ambiguous, may be explained by context SM to be liberal with a view to substantial justice 805-807 this applies only to its effect 805-807' and does not create a rule as to sufficienmj 805-807 will not uphold bad pleading 805-807 may allege is legal owner and holder 805-807 construction of allegation that claim is " due " 805-807 of allegations of breach 807 special rules applicable to pleadings 808-817 CONSTRUCTION OP DEEDS: grantor of trust deed cannot maintain action for 312 trustee or one requiring execution of trust may 313 926 INDEX. CONSTRUCTION OF WILLS; page. who may maintain action for 313 what complaint for, should show 313 sometimes given on petition 313 so in suit for legacy 313 CONTINUANDO : several injuries may be proved under 222 CONTINUING DAMAGES : when settlement for injury bars action for subsequent damages 663 CONTRACT: See Aqbebmbni ; Covenant; Illegal CDntract; Woekand Labos. CONTRACTOR: See Wobk and Laeok. CONTRIBUTION: none where one surety pays without allowing other to discharge himself, 383 notice to one who has agreed to assist in repairing dam 393, 477 where one co-surety seeks 393, 394 owner of one parcel paying lieu of land on several 468 CONVENIENT : promise to pay when ...193, 410, 693 CONVERSION: one trustee cannot sue co-trustee for HI demand after suit may be evidence of conversion before 309 owner intrusting bill to one who advances money ou it 313 by purchaser who refuses to pay or return property 313 if vendee has paid part, may pay balance before vendor sells 313 vendor liable for retaking property if no fraud by purchaser .314 if pledgee guilty of, need not tender what is due him 703 SeeTEBSPASs; Teovee. CONVEYANCE : only void as to so much of lands as possessed adversely 664 See Condition. COPYRIGHT : may use book for obtaining information 314 common-law right of author 314 when and how far State courts have jurisdiction 314 See AuTHOE. CORPORATIONS : remedy of receiver of insolvent 129, 141 allegations as to incorporation 226 in case of foreign 226 unnecessary to prove 226 except foreign 226 need not allege incorporation .314, 519, 743 exceptions to rule 314 liability for stock transferred on forged transfer 335 when may maintain libel 367 liability of, for malicious prosecution 371 when officer cannot recover for services 491 denying not suflaoient, must plead nul tiel corporation 519 rule does not apply to foreign corporations 619 service here on officer of non-resident 741 creditor of, suing to prevent consolidation 859 where discretion neither creditor nor stockholder can sue 859 where not liable for fraud of directors as to value of stocks 894 when liable for agent's entry and taking earth 899 INDEX. 927 COSTS : PAGE. when party not liable for, aa damages 246 when surety may recover 303 when party guilty of negligence, not liable for 389 when second mortgagee not bound to pay 413 if not taxed illegal may be recovered back 468 otherwise if taxed 468 when must be paid on discontinuance 497 allegations affecting right to proper 584, 593 when defendants only entitled to one bill of, though answer separately, 610 COUNSEL: See Attorney, OOUNTBR-CLAIM: on ground of defect of goods 563 must be pleaded 564 defendant not bound to interpose 588 but if has suit and so interposes, is bound to elect 588 if judgment recovered on, wiU be stricken out on motion 588 defendant may interpose 612 definition of 612, 616 in action for goods sold, damages on warranty 616 must be a cause of action against the plaintiff 616, 617 set-off against assignor is not 616 and statute of limitations need not be replied in such case 680 if may operate as payment or as counter-claim, held to be former 617 if asks to recoup, held to be 617 includes set-off 612 which must exist at commencement of action 617 whether accruing after suit, but before answer, may be allowed 659 Code has enlarged 617, 635 If merged in judgment, and that at too late a day, is not 618 before Code, if unliquidated, was not set off. 618 as for breach of covenant by landlord 618 nor iu action on warranty 618 in action against receiver, cannot set off claim not due when appointed, 618 allowed in ectuity as at law 618 defendant must own, when suit commenced 618 installment of bond becoming due after suit 618 sometimes allowed, though not due 618 as in cases of insolvency 618 under Code, not necessary plaintiff's claim should be liquidated 619 nor defendants 619 so an equitable set-off may be interposed 619 as the balance on a partnership accounting 619, 637, 859 but a set-off is not allowable in tort 619 must be due defendant, or a defendant as to which several judgment, 620 one such defendant may set-off individual claim 620 a surety cannot, at law, avail himself of, by principal debtor 621, 859 nor can a subsequent purchaser 623 but, if insolvent, may in equity 622, 859 or may interpose equitable defense 622, 623, 859 may compel creditor to bring in debtor 622, 859 when set-off may be made 623, 859 when may set up damages for breach of warranty C33, 859 so that note given for goods never delivered 623 or paid for by sale by property 622 debtor cannot show he had, and surety paid without allowing to set up, 622 equitable set-offs allowable 623 but must be such an equity as could be enforced by action 623 rights against and in favor of assignee 623 if right in favor of executor or administrator on cause after death, can- not set up counter-claim against deceased 633 if pledgee allows pledgor to sell, cannot set up one against latter 623 unless purchaser did not know facts 6;i4 matters in recoupment may be set up 634 as for breach of implied contract 625 so damages in cases of fraud 625 928 INDEX. COUNTE R-CL AIM — Continued : page. breach of warranty 625 but party must offer to return 626 must be in nature of cross action 626 tliough need not have been ligtuidated 626, 627 under old system not a complete bar 626 if exceeded plaintiff's claim, cross action necessary 626 action for rent, tortious act of landlord in making repairs 627 what included iu recoupment under Code 627 what is " connected with the subject of the action " 027, 628 object to extend to equitable set-off 628, 629 that one party insolvent frequently, ground for cross action 629 otherwise, if assigned before due 629 recoupment cannot grow out of independent contracts 629 may recoup for fraud in making of contract 630 but not fraud in subsequent transaction 630 defendant may have j udgment for excess 630, 632 in ejectment, defendant may set up equitable defense 630 in trover, may enforce lien 631 in suit to restrain foreclosure, defendant may have one 631 so, in foreclosure, defendant ask to have canceled 631 to recover money paid on contract, may have specific performance 631 in action on contract, may set up mistake and enforce 631 so in suit to restrain turning of water-course 631 in action to recover rent, cost of making repairs landlord agreed to make 632 money lost at betting 632 in action to rescind contract for lease claim by landlord for rent 632 expenses of recovering goods abandoned under insurance policy 632 action to recover money loaned on stock, what is to be credited on account thereof 632 bank with which assignee deposited may set up assignment fraudulent, 633 that owner of house, formerly kept as house of ill-fame, let it conceal- ing fact 632 in action for rent, damages from soot from landlord's engine 633 in suit to recover moneys collected by insurance agent, may set up damages from being improperly discharged 633 in mortgage foreclosure that plaintiff agreed to release part of premises on payment of part and refused 633 that plaintiff, as defendant's agent, received certain moneys which he converted, and for which refused to account 633 in action for breach of contract to convey breach by plaintiff and spe- cific performance 633 in ejectment, an equitable title in defendant 633 in partition that defendant I'ecover possession and that his enjoyment be perpetuated 633, 634 that deed or will lost, and his own exclusive right to possession 633, 634 any thing which formerly matter for equitable cross-bill 63i-636 in claim of lien for purchase-money defendant may ask rescission 634 in suit for specific performance, that agreement be surrendered 634 arisiug after suit but before answer 635 mortgagor rendered services for mortgagee to be applied on mortgage. . 665 if broker sells for less than instructed to, damages are 667 none in action to restrain trade-mark 859 action against assignee, expenses in repairing steamboat and legal expenses 633 though defendant may be credited therewith 633 in tort for conversion, indebtedness by plaintiff to defendant 633 money loaned to State officer 640 citizen cannot set up against State 640 damage from leaky condition of roof, though landlord agree to allow. . . 667 defendant not bound to interpose 636 if constitutes an independent cause of action 636 nor will suit for purchase-money be stayed in suit on warranty 673 first action not ordinarily stayed to enable defendant to establish in another 636 nor can judgment in first be impeached by known equitable defense 636 in suit for money, not compelled to ask partnership accounting 637 but cannot interpose and still bring independent suit 637, 638, 639, 673 barred if set up and defendant do not appear 637 INDEX. 929 COUISrTBR-CLAIM — Continued : paot. otherwise if withdrawn 637 or parties stipulate, shall not be barrud 037 in suit to restrain foreclosure, defendant demanding foreclosure cannot waive after trial 637 How COTJNTEH-OLAIM TO BE STATED : to be separately stated 637-640 what is and what is not a separate statement 639 in same manner as if stating cause of action in complaint 637 defendant must become actor — must ask affirmative relief 638 recoupment to be stated as if independent action 638-640 if on instrument for payment of money 638 facln of set-off to be stated, and not merely that plaintiff indebted 640 not to be stricken out as irrelevant 653 remedy by demurrer or motion to make definite 653 in suit for unloading coal that part lost by plaintiff's negligence 695 in nature of cross -action 714 must reply statute of limitations 715 may reply counter-claim to counter-claim 716-718, 763 partial defense by way of good 761 demurrer because not between parties as to whom several judgment proper 763 so not connected with subject of action 764 or does not arise out of transaction in complaint 764 set-off, total or partial, proper 764 if set-off interposed to action for wrong may demur 764 See Equitable Defense. COUNTS : how far each must be perfect or may refer to another 606, 607 same defense not to be stated in different ways 607 when complaint held to contain several, though not separately stated. . 755 See Causes of Action ; Demitebee. COUNTY OTiBRK: did not properly docket judgment 389 COUNTY COURT: complaint in, must allege defendant resides in county 315, 860 if more than one must allege all so reside 315 whether appearance and answer waives right to object 316, 860 COVENANT : not to remove hay, straw, etc., last year of lease ■ 316 assignee of lease liable foi' breach of covenant 316 of seizin brokers as soon as made, if at all 316 not a guaranty judgment will not be set aside 316 damages, if lessee do not pay taxes 316 complaint in such cases 316 to pay half expenses of party wall 317 one who accepts deed-poll bound by covenants in 317 not to use for particular business 317 so not to build beyond particular line 317 eviction by lease 317 when must convey subject to condition, and not to oovenmit 405 when of warranty not broken by water right 473 as to right of way 473 to draw off water six days in year runs with land 480 CREDIT : sale on, but refusal to give notes as agreed 191 CREDITOR: when may sue olHcers of corporation in equity to compel payment 109 if seeks to set aside assignment, other creditors not necessary parties, 114, 137 117 930 INDEX. CREDITOR — Continued. page. otherwise to carry out assignment 81, 114, 127 may sue fraudulent purchaser and executor, etc 127 when and how attaching may justify 128 allowing collateral security to be lost 389 allowing policy of insurance to expire 390 See Ckeditok's Bills; Receiver. CREDITOR'S BILLS AND CREDITOR'S SUITS: when may be brought, and requisites of 128 against husband and wife, if she die after issue cannot have judgment for interest which devolves upon husband by such death 843 creditor reaching legacy assigned for inadequate consideration 317 though assignment not set aside .317 allegations necessary 317, 860 to remove obstruction 318, 860 cannot reach property of foreign government 318, 860 suit by one in behalf of others, what creditors may control 318 complaint against assignee 318 assignment by surviving partner to pay individual debts 318 cannot reach cause of action or judgment for exempt property 330 otherwise, if proceeds invested in property not exempt 330 judgment docketed against real property no execution 860 CROPS-: rights of purchaser on foreclosure 454 of devisee to 454 CROSS-BILL : when interposed, how considered and how actions tried 634 when necessary 634 could not introduce new and distinct matters 634 was founded on matters alleged in original bill 634 necessary where defendant entitled to relief beyond scope of original suit 634 in claim of lien for purchase-money defendant might ask rescission 634 so for speciilc performance to have agreement delivered up 634 when proper to adjust equities between defendants and practice 635 when matter arose after suit 635, 653, 656-659 CULVERTS: liability of railway for not providing proper 387 so for not properly fencing 882 CUSTOM OR USAGE : if not general should be pleaded 318, 319 so facts, which bring within 318 otherwise if general 318 not, however, necessary to allege party knew of 319, 860, 861 cannot be pleaded to vary written contract 319 how facts to be pleaded 563 carrier bound to land goods, notify owner and store according to 667 :iniong brokers, to sell without notice not binding 685 party presumed to contract with reference to weU known 860 but presumption may be rebutted 860 must be reasonable, and when is 861 requisites of pleading 861 goods usually mixed seller may mix according to custom 891 DAM. See Contribution, Water and Water-course. DAMAGES: how alleged ;KJ when special must be alleged :i22, 2L';! in action for enticing away servant 222, 223 for breacli before tei-ni expires 223 special damages in libel and slander 223 INDEX. 931 DAMAGES — Continued : page. what is sufflcient allegations of facts showing 223 to accrue 223 in actions by bailor or bailee 301 In action by pledgee 301 in action by pawnor 303 upon bond to indemnify or pay 303 when costs may be recovered in such case 303 when may be recovered by surety 303 for not transporting goods by ship agreed to 308 on covenant to pay taxes 316 complaint to recover in such cases 316 facts showing entitled to special, must be pleaded 319 gains and profits, when recoverable 319, 861 averment of special, unnecessary where difference between contract price and actual value only sought 320 prospective, must be averred 320 but if averred may be recovered 320 though paid by another 320 costs paid 320 in slander not actionable per se must be averred 320 loss of trade in slander 320 failure of landlord to repair 320 when purchaser pays in advance 320 when seller notifies cannot perform, and returns money paid 321 obstruction of way 321 county clerk did not docTcet judgment 389 failing to protest draft or note 389 when party negligent not liable for costs 389 money burned through negligence of another 392 coal mined by mistake 460 where property converted knowingly 460 where seller makes special warranty, as " Bristol cabbage " seed . . . 470, 901 evidence of what property sold for 472 when party must pay judgment in order to recover amount of 473 for cutting of trees by tenant 476 rule of, where party works, and to be paid in land 488 in cases of sickness or inability according to contract rate 490 when may be apportioned on account of non-joinder of other owners . . 498 where accrues after settlement or are continuing 663 what rule of and how shown where landlord neglects to repair 694 allegations as to act admitted by failure to deny 798 against carrier for not delivering at particular time 902 See Relief ; Speciai, Damages. DEBTOR AND CREDITOR: business for his benefit in name of another ; such person has title 457 See Exempt Property : Extension of Time ; Promise ; Receives ; Tender. DEED: surrender of, will not revest title 408 when, if tendered, must have certificate of county clerk attached 703 See Condition ; Construction of Deeds. DEED POLL: r. one who accepts bound by covenants in 317 DEFAULT : only admits facts well pleaded 753 where judgment applied for on 793 no intendment or pi-esumption on 848 plaintiff can only have relief asked for 648 facts must show him entitled to 848 but rule only extends to matters of substance and not of form 848 when party in, cannot recover 885 932 INDEX. DEFECTS: page. if not substantial to be disregarded 569, 849 when aided by pleading ovim' 847 but not a defect in substance 847 by presumption or intendment after verdict 848 but not of material facts not alleged 848 may cure a defective statement, but not defective title or cause of action, 848 no intendment on default 848 such judgment only admits facts alleged 848 and plaintiff can only have relief asked for 848 facts must show him entitled to the relief 848 but rule only extends to matters of substance and not of form 848 which do not affect substantial rights of party 849 DEFENSE: arising after suit 354 new matter constituting, must be pleaded .547-549, 554r4)61, .562 and party cannot avail himself of, if not pleaded .561, 861 under denial can only rebut what plaintiff obliged to prove 582, 882 payment must be pleaded .549, 550, .564 partial failure of consideration .550, 563, 669 so total failure of 667 and must show whether partial or total 669 mitigating circumstances .5.50, .566, 684 partial defense may be pleaded .551, 562, 684 usury must be pleaded 558 so appointment of receiver, so plaintiff has no title 861 settlement and satisfaction after suit .560 but judgment for part and payment no defense, if agreed to pay balance, 560 fraud must be alleged as a defense 561, 674 may show property worthless, on question of damages 561 should not plead evidence 562 how plaintifPs want of title to be set up 562, 569 if assignee of lease desire to show he has assigned, must plead 562 What must be Pleaded : against sheriff for escape, that debtor returned before suit 563 or would have returned but for plaintiff's fraud 563 or that debtor was recaptured 563 discharge in bankruptcy 563 infancy 563 nul tiel corporation 563 that a statute "vvas not constitutionally passed 563 license 563, 679 justification by an officer under process 563, 671 if has two processes must plead both 678 when must plead judgment 563, 671 defect of parties which does not appear on face of complaint 563 facts which render award invalid 563 existence of custom and facts bringing within 503 partial failure of consideration on account of quality of goods 563 that defendant of imbecile mind 563 or intoxicated 563 act of God, as a freshet 563 that contract was illegal 563 unless appears on complaint when might demur 563 misnomer 563 that party agreeing to lease caanot give good title 563 extension of time to perform contract 563 when reasonable time is ^mplied 563 and must plead tender 563 laches in demanding execution of trust 563 that patent invalid 563 fraud in inducing party to enter into contract 564 that property illegally levied on was legally levied by another 564 that party is a honaftde purchaser 564 and must allege want of notice at payment 564 even securing money insufficient 564 advi^rse enjoyment 564 paymejit 564 unless plaintiff allege 564 a counter-claim 564 that plaintiff knew of and connived at daughter's seduction 564 so for seducing wife 564 that plaintiff prostituted herself after promise of marriage 564 INDEX. 9B3 DEFENSE — Conimued: page. that contract rescinded for fraud 664 disaffirmance on ground of infancy 564 tliat an award lias been made 564 a former suit 564 tliougli if proved without objection a defense 564 judgment after issue joined 564 though record just made up 564 under denial, T^hether may show afterward vacated 565 but should be set up in supplemiental answer 565 or by answer, if before plea 565 sotting up purchase of chattel mortgage, or judgment and levy after conversion 565 sheriff, in escape, pleading debtor, worthless .• 565 that sold OS manufacturers," not they were in fact 565 if third person claim under tenant in common, must plead fact if admits ownership in plaintiff 565 under »ion-est /act)(m, cannot show abandonment or non-performance, 566 where defendant cannot perform, plaintiff must plead facts 566 and must show why does not offer to perform 566 in divorce, condonation must be pleaded 669 so estoppel 670 that sale to plaintiff was fraudulent 674 What need not be pleaded 599-601 if conversion denied that defendant tenant in common 565 that defendant in actual possession of land trespassed on 565 quantity of grass cut before statute of frauds insisted on 565 alteration need not be pleaded, if execution denied 565 under denial of ownership, may show gift liy plaintiff's intestate 566 under allegation of wrongful act, may show negligent 566 of tender may show waiver 566 but otherwise, of protest 566 except where allege duly pi-esented 566 under allegation of due authority, sustained by ratification 566 amendment in such case 566 matter in mitigation, except libel or slander 566 in breach of promise, that plaintiff in habit of becoming intoxicated 567 or guilty of improper conduct 567 or in seduction not amounting to consent 567 but must be offered specially in mitigation 567 that plaintiff's negligence contributed 567 nor in seduction that plaintiff and "wife alienated 567 converse of proposition, plaintiff must establish 699 nor reason why plaintiff ought not to recover if states facts 599 what court notices judicially 599 not bound to answer matter stated by way of recital 599 or arithmetical proposition 599 immaterial allegations 599 nor prayer for relief 599 nor if subject to penalty or forfeiture 600 how denial to be framed in such case 600, 601 need not allege want of stamp, if denies execution 697 form and substance of 601, 603 hypothetical form of defense, how far allowable 602-605 not to be argumentative 605 iutent of plaintiff need not be answered 605 to part of cause of action 605, 606 arising after suit, but before answer 635, 663, 656-6.59 under denial of plaintiff's title, may prove defendant's title 798 need not plead revocation of agent's authority 567 facts must be pleaded 567-5G9 conclusions of law not be pleaded 570 to be set out same as a cause of action 671 a defense should not be pleaded if can be proved under denial 583 allegations on subject of costs proper 584 looking to affirmative relief 587 formerly could only interpose one plea 595 under Code may plead as many as has, if not inconsistent 595 what are inconsistent 595-598 remedy, if inrerposed 598 See Answee; Denial; Countek-claim ; Joint ok Separate Answeks; Separate Defenses. 934 INDEX. DEFENDANTS : page. when plaintiff may declare against one of several 63 proceedings for leave to proceed against one of several 64 how far equities between, may be set up 237 plaintiff not obliged to serve answers of, in interpleader 357 rights of, as between themselves in interpleader 357 one of several, purchasing action against all 404 one cannot embarrass plaintiff by setting up rights against another, 591, 610 when may interpose equities between, and how 635 when all to verify answer 644 not affected by acts of co-defendant, in which does not join 799 one cannot delay plaintiff by equities as to co-defendant 802 but defense which affects plaintiff proper 802 See Joint Debtors ; Joint and Sevekai, Answers ; Parties. DEFINITE AND CERTAIN: indefiniteness in Allen v. Patterson not allowed, on motion 171, 199 allegation that sold " as manufacturers " not sufficient to show were, 172, 5fi5 degree of deflnitenesS required • 'ii^, 259-264 if denials evasive, remedy by motion 512 instances of what are 512-515 motion to make counter-claim so 653 court will order allegation of truth to be by setting out the facts 678 where time or place not definite, remedy by motion 730 cannot demur for uncertainty 754, 771 if substance good, remedy by motion 756 motion not proper as to demurrer 768 when remedy by motion 771-773 answer that plaintiff indebted in certain sum, as .per bill of particulars, indefinite 810 DBFINITENESS : degree of, required in pleading 228, 257, 259, 264, 268 remedy for indefiniteness 268 DELIVERY : paying earnest and furnishing cloths for packing, not 341 See Bailment ; Carrier ; Express Company : DEMAND : when must be alleged and when necessary 214 when unnecessary in ejectment 230 not necessary against fraudulent purchaser 309, 861 but is against assignee or purchaser in good faith 309, 861 and if several assignees must be demand on each 309 after suit, evidence of conversion before 309 none necessary in ejectment against purchaser in default 321 nor against one receiving money for another 321 nor in cases of note payable at particular place 321 though maker may plead readiness there 321 effect of and practice in such oases 321 necessary if payable on demand at sight 321 none necessary against one obtaining goods by mistake .321 necessary, time of performance not fixed 321, 861 allegations when tender or performance waived 322 one rightfully in possession not liable until 322 but must show came into possession bona fide 322, 861 averment of wrongful detention includes 322 receiver of rents must demand 322 BO a grantee 322 necessary when suretj' agrees debtor will pay on 322 none necessary where duty to remit 322 as against sheriff for moneys collected 322 but is against attorney unless waives 322 but not for legacy he has received 322 is in action against foreign factor 322 against sheriff for property properly levied on 3^ if may deliver either of two things must demand both 322 creditor to select articles in payment 322 INDEX. 935 DEMAND — Cnntiniied. page. so of option to re-purchase bonds 322 must be made at proper time and [ilace 323 refusal to deliver at any except propiir place 323 servant refusing to deliver without master's orders 323 when master liable for refusal by servant 323 purchaser on condition title not to pans till pajrnent 323 servant may demand 323 how far one may ratify a demand 323 must be made so to enable to complj' with 323, 861 when demand of one of several good 323 one of two lessors may demand rent 322 of one of several joint tenants 322 necessary by depositor 323 unless right denied 323 so of individual depositary 323 of wife not good against husband 323 must object to autliority to maliie at time of 323 of dower, when husband has alienated 326 allegation in cases of 326 necessary, if money received by mistake bona fide 379 otherwise, if received mala fide 379 act to be done on demand party has reasonable time 410, 861 so where " immediately on demand " 410 or " at once and without delay " 410 when necessary in trover 456, 458, 459, 460 only evidence of conversion where party has property' 461 under agreement to do certain work or pay certain sum 486 See CoNVEiiSioN ; Notice. DEMUR : cannot, because relief asked too broad 275 DEMURRAGE: when recoverable 324, 862 DEMURRER : for defect of parties plaintiff 80 for misjoinder of 80 objection not proper, party must be taken by 113, 114 one defendant cannot demur on ground another improperly made de- fendant U4 where maker and guarantor joined 126 when joint or several 126 does not lie for not separately numbering causes of- action 151 if complaint shows certain parties necessary may demur 499 lies, where, illegality appears on face of complaint 563 that facts in mitigation, in libel or slander, not so pleaded 577 not proper in slander where claims privileged for admits malicious speaking 580 will not lie to immaterial matter mixed with other 591 otherwise, if whole defense bad 591 presumption that agreement required to be is in writing 674 remedy, if served to same matter as answer or reply 723, 734 definition of 729 nature and use of 730-735 must admit the facts 730 but only admits such as are material and well pleaded 50.'>, 515, 783 when courts of this State have jurisdiction of injuries in another. .73(1, 739 except for trespasses on real estate in another State 739 how question of jurisdiction in such case determined, on 730 how want of, determined on motion 730 what questions formerly raised by 730 many such questions now by motion to make definite 730, 771 difference between general and special 731 may demur for any number of causes 731 not to part of a pleading or count 731, 771 to one of several counts 732 must not be too broad or cover too much 732, 762, 862 936 INDEX. DEMURRER— Contintu'fL page. if states demurs to ansimr, but subsequently states what part applies only til that 763 overruled, if to entire pleading part good 733-735, 755, 802 .jadgmeut to be for party committing first fault 733-735 if to answer defendant may attack complaint 733-735 if to reply plaiutift' may attack answer unless complaint bad 733-735 though a good count may sustain the defective pleading 733-735 but in looking back court will not regard matters of form 733-735 and will not attack if only cause for special demurrer 733-735 one defaidaut may demur and another answer 734 but cannot demur ami answer to same defense ; remedy if does 777, 781 cannot be used to strike out Irrelevant matter 735, 761 for what causes defendant may demur to complaint 735 defect must appear on " face of complaint " 736, 766 but if does, should take objection by demurrer and not by answer 770 if does, can only be taken by answer 770 for want of j nrisdiction 736, 743 when remedy for lack of by demurrer, and when by answer 736 as to amount claimed 737 did not show cause of action 737 want of .jurisdiction of subject-matter 737 as matter of political and not legal nature 737 matters only enforced by treaty 738 State courts uone over federal courts 738 none over officer of United States for official act 738 except for wrongs 739 nor of suit to restrain infringement of patent 738 but how far fraud as to sale though defendant claims patent 738 not necessary properLy should be within jurisdiction 738 but court may decline to act in such cases 738 courts of one State have of specific performance, land in another 738 though is matter of discretion 738 supreme court is one of original jurisdiction of all actions 739 wrongs by officers at sea 739 in cases of salvage 739 actions between another State and citizens of another 739 what are courts of limited jurisdiction 739 proceedings of such courts should show jurisdiction affirmatively 739 of such courts not presumed 739 if not shown, ground of demurrer 739 judgment of such courts void, though objection not taken 739 of superior courts presumed 740 if want of in such courts does not appear, remedy by answer 740 when proceedings set aside by nrotion 740 when and how far over non-resident defendants 740-743 service out of State does not confer 741 service here on president of non-resident corporation 741 only remedy service by publication 741 in cases of divorce defendant a non-resident 743 when facts showing jurisdiction in such cases to be pleaded 743 on ground plaintiff has not legal capacity to sue 743 as infant, idiot, lunatic, etc., and no next friend 743 if appears on face of complaint may demur 743 if not to be taken by answer 743 it not waived 743 so if appears demand assigned to another 743 if appears plaintiff's letters of administr.atiou void 743 as in letters issued in a foreign country 743 but need not allege incorporation 743 another action pending for same matter 743, 744 if appears from face of complaint may demur 744 if not by answer 744 if not defense waived ; 744 such defense cannot be talven advantage of by motion 744 case where separate actions against different wrong-doers 744 former suit in another State or federal courts no defense 744 for detect of parties 744-749 must be taken by demurrer if appears by complaint 44 otherwise by answer ■ 44 INDEX. 937 OBUVKR^R— Continued: page. if in nei i her way, is waived 744 this applies only to formal parties 746 but still court must order necexsanj parties to be brought in 746 such defect is defloiency of and not too many defendants 745 who may demur on account of too many 745 cause of action not in favor of all the plaintiffs 745 niust specify plaintiff to which objects 745 it for want of necessary parties must point out who they are 745 except where shows other necessary parties without naming them 74G where parties have c-ommin or general interest 747, 748 where nou-resideiits neei not be made parties 748 but the fact that is and has no propei-ty in State to be pleaded 748, 749 that several causes of action improperly joined 749 objection must be taken by demurrer 749 and cannot even compel to elect 749 so if count" for fraud and one in warranty 749 may join trespass on lands and to real property 749 complaint ou award states but one, tliough states facts fully 749 formerly called multifariousness 749 is of causes of suit and when lies 750 and so where party only interest in part 750 demurrer not created by, but only defined by Code 750 multifariousness covers more than misjoinder of causes 750, 751, 75!2 in causes other than provided for by Code, former equity rule as to joinder applies 750 what ax'e dissimilar and incompatible causes 751 when may maintain as to different trust or different donors 751 one good ground and another untenable not multifarious 751 bill against executor tor legacy and personal debt multifarious ?'51 by creditor for account against executcn- and to reach lands in hands of third person 751 interest of plaintiffs same defendants under same general scheme 751 not proper to joinder one who erects nuisance and grantee 752 remedy for multifariousness by demurrer 753 and when to be joint 753 claim must affect all the parties 753 joint claim against two and separate against one 753 distinct and separate claims against two 7'53 but are exceptions to rule 753 what is, is much a matter of discretion for court 753 in cases created by Code that is inflexible 753, 75S must not require different places of trial 753 but no objection that requires different modca of trial 7.53 must be separately stated, but this not cause of demurrer 7I>3 that complaint does not state cause of action .' 753-758 this does not apply to capacity of plaintiff to sue, but that /acts show no cause 753 failure to demur does not waive this objection 753 may reverse judgment on appeal 7.53 on default, only admits facts well pleaded 753 restrictions as to last two rules 7.54 rules for determining whether complaint states cause of action 754 statute of limitatious must be pleaded, and nut objected to by demurrer, 7.54 if good cause of action, surplusage cannot demur 754 must be to enter cause of action 754, 155, 771 will not lie for irrelevancy, uncertainty or surplusage 754, 771 but this does not extend to improper joinder 755 nor if entire pleading irrelevant 771-773 if several counts, separate demurrers proper 755 when complaint held to contain several, though not separately stated. . 755 for not expressly averring debt due 755 if complaint shows debt not due, demurrer lies 7.55 prayer for relief not stricken out nor demurrable 755 if in substance sufficient, not demurrable, for want of form 756 remedy by motion to make definite and certain 7.56 so must defects which formerly subjects of special demurrer 756 agreement set out by implication sufficient 7.5U demurrer only goes to the ftiibstance of complaint 756, 757 as when shows plaintiff no right to institute suit 757 118 938 INDEX. DEMURRER— Continued : paoe. or when does not make out a case m plaintiff's favor 757 or illegal or against public policy 757 want lit interest by plaintiff in subject-matter 757 it joint suit, want of interest in one of plaintiffs 757 as if one be a mere agent 757 so if two sue, and title alleged in one or the other 757 so that defendant not party in interest or liable 758 as married woman on debt of husband 758 if complaint shows plaintiff not entitled to relief, should demur and not answer 758 formerly, demurrer only lay to complaint 758 when may be interposed to answer under Code 759 when to reply 759 demurrer lies to any defect in answer which would render complaint thereon invalid 759 as another action pending 759 causes improperly united 759 or material allegations omitted 759 if defense does Jiot refer to cause of action intended to answer 760 if to entire answer overruled, it one good count 760 cannot demur to part of a single defense 760 remedy against such a demurrer 760 does not lie to denial merely 760 If sham or frivolous remedy by motion 760 lies to mere matter in mitigation 761 or may move for judgment 761 partial defense by way of counter-claim, good 761 so where partial defense, as mitigation, may be pleaded «'i(/i other matter 761 so where might formerly be set up by way of recoupment by notice, 764 when cannot demur to one defense, if denial of another inconsistent with admission 762 test as to sufficiency of defense of new matter 762, 763 demurrer lies to new matter for insufficiency 763 may reply a set-off to a set-off. 763 whether a demurrer lies to a reply, if not required 763 to counter-claim between parties as to, where seTeral judgment proper, 763 not connected with subject of action 764 or does not arise out of transaction set out in complaint 7Gt set-off, partial or total, proper 764 what is set-off extended by Code 764 but, if attempted to action for wrong, may demur 764 how grounds of to be stated 765-768 that does not state facts sufficient to constitute cause of action or defense. .'. 765 but may specify reasons 767 on other grounds, must specifically point out grounds of objection 765 cannot be sustained on grounds not stated 766 how objection to want of j urisdiction to be stated 766 to defect of parties, must specify who should be 766 but need not necessarily name them 766 that another action pending 767 several causes of action improperly united 767 rules as to demurrer to answer or reply 767 if answers right to demur waived 769 though may be allowed to withdraw answer and demur 769 when allowed to answer on overruling 769 when action allowed to be divided 709 allowed to answer, if demurrer not frivolous 769 otherwise if frivolous, though affidavit of merits 769 or, if for form merely 770 this rule did not apply where objection could be raised by general demurrer 770 under Code, not allowed to answer, unless interposed /" good faith, 770, 776 but may, in some cases, be allowed to answer on giving security. . . . 770 allowing to answer is matter of discretion 770, 776 usual to allow 770 unless appears, no amendment will aid party 770 if answer not allowed, by order, may be obtained by motion 770 INDEX. 939 DEMURRER — Cojitinued : page. if desires to answer, sliould do so and not appeal from judgment 770 when allowable to sham pleading 77X on ground, reply not consistent with complaint 77!!! when party waives objection by not demurring or answering 773-775 allowance of an^endment on sustaining demurrer 775-778 is matter of discretion „ 776 not allowed unless court satisfied pleading interijosed in good faith. . . . 776 nor if leave to amend once given 776 nor if apparent party can in no event succeed 776 what may be Interposed on leave to amend 776 although court may grant leave, cannot compel amend nent 776 Importance of removal of demurrer overruled from record 778 if remains, admits facts in pleading, or part of it demurred to 778 whether to be disposed of before issues of fact. 788 where to be argued 794, 795 DENIAL : of matters presumed as matter of law ',256 defendant may deny generally or specifically 504 if not denied, is admitted 505, 5'M defendant cannot controvert on trial allegation not denied .505 of agreement under statute of frauds 505 if plaintiff admit payment, cannot deny if 505 and admits difference between demand and amount claimed 505 need not deny matters not well pleaded 505, 515, 783 or inferences of law 505, 515, 52S-Ki!>, 53G-52S what is a denial of a fact, and not of law 523, 6'.i8 general denial .510-520, 548 what defenses available under 506-509, .548 any fact which plaintiff not bound to establish affirmatively must be pleaded . . .510, 511 if denies generally, cannot specifically, and vice versa 513 denial of each and every material allegation, evasive 512, 544 remedy by motion to make definite and certain 512 so of every allegation not '• expressly and absolutely admitted " 512, 544 every allegation " inconsistent " with what stated 514 general denial puts in issue every allegation, including what implied.. 515 538, 529 trover puts in issue plaintiff's title 515 test to determine whether allegation material .515 denial of copartnership modo et forma .515 of facts showing had no knowledge 515, .534, 545 of any knowledge or information sufficient to form belief. . .515, 534, 545, 862 when party not allowed to deny knowledge or information 515, 517, 534 545, 863 remedy if does 517, 545 " says he denies " whether good denial 516, 526, 862 in supplemental answer cannot deny fact admitted in original 516 when denial does not put partnership in issue 516 when does 570 held good of indebtedness where went to trial 516, 570 that sold plaintiff 's property, or received any thing therefor 516 under denial of indorsement may show no delivery 516, 524, 525 miust deny both knowledge or information sufficient to form a belief. . . 516 of ownership not sufficient unless alleges who is 517-519, 525-528, 569 what is good denial of ownership 537, .570 but when fai;ts showing not alleged in complaint may 517 denial of indebtedness not good unless denies facts 518 so of non-payment 518 when plaintiff simply alleges has title to lands 518, 524 of incorporation not sufficient to let in proof is not 519 must plead nul tiel corporation 519 of protest not sufficient to compel production of notary 519, 520 form of affidavit in such case (note) 520 setting up inconsistent state of facts not a denial 520, 533 nor is mere inferential denial good .520 specific denials 530, 529 may deny what necessarily implied 521 what is necessarily so implied .528, 529 940 INDEX. DENIAL — Continued. page. but not, if not necessarily implied 521 nor mere matter of aggravation 521, 523 nor if not essential to case 521 nor immaterial matter 521, 522 if specific may deny any number of the allegations 521 whether denial of immaterial matter will be struck out 522 denial that taken out of prison by habeas corpus 5255 delivery, negligence, notice, demand, etc 524 that plaintiffs joint owners 524, 570 by defendant that he was a partner 524 of presentment and non-payment 524 of indorsement and delivery 524 that made note is of delivery 525 that plaintiff bona fide holder of note ; 526 of indorsement 526 of payment when alleged in complaint {note) 529 form of general denial 530 by negative pregnant defective 530-534 when issue material as to some defendants, denial as to them good 533 if denies knowledge or information sufficient to form belief, need not deny the allegation expressly 535 remedy for defective denial 545-547 under denial can only give evidence rebutting plaintiff's case 582 form of, when excused from verifying 600 of one material fact good 605 must deny facts 087 of all allegations inconsistent with answer 687 under denial of execution may show no stamp 697 demurrer does not lie to 760 if sham or frivolous remedy by motion 760 allegation assignor had continued in possession denial had managed and controlled, not good 798 must be direct and positive 79S that is owner and holder if facts showing not alleged 806 to be liberally construed at trial, if CLuestion not raised till then 807 of matter not alleged, except incidentally 812, 813 when negative pregnant not good 813-815 when is a negative pregnant 813-S15 See Admissions ; Answek ; Reply. DEPARTURE: reply must.be consistent with complaint 719 what is departure 719 DEPUTY SHERIFF: cannot maintain action in own name 293 DESTROYING NOTE OR BILL : liability for, by defacing 324 DEVISEE : when not bound to pay mortgage 373 suit by, for rent, defense devisor not seized of reversion 693 DIRECTORS : statute of limitations in favor of, for not making report 682 though liable tor fraud, as to stock, company not 894 See Officers of Corpoeations. DISAFFIRMANCE : on ground of infancy must be pleaded 564 seller may disaffirm and sue purchaser without consideration from ven- dee or with notice 669 without offering to tender back to such purchaser 669 if sues vendee and compromise, may still disaffirm as to purchaser of remainder, 862, reversing 669 INDEX. 941 DISAFFIRMANCE — CoreU?ii(e(i: page. though expressly resei-ve such right 669 oil disaffirming for fraud must do so prompt!}' 669 and return all received 669 but may recover damcujex for fraud without offering to rescind 660 tali:ing any benefit with knowledge of a ratification 669 or changing condition of the property 669 if property capable of serving any advantage to vendee must be re- turned 669 notes delivered as escrow : purchaser entered and vendor affirmed his act 863 See Fra ud ; Rescission. DISCONTINUANCE : how affected 497 arbitration operates as 659 when reply of, good 7:i7, 728 against infant without costs 825 DISCOVERY : cannot be had through pleadings 30, 49 DISCRETION. See Officer. DISTRAINT FOR DAMAGES : how may be pleaded 582 how defendant to justify 582 DIVORCE : absolute and limited cannot be joined 142 what allegations may be inserted 142 what revives condonation 142 on ground former divorce fraudulently obtained 324 husband expelling wife on suspicion of unfaithfulness 324 allegations in action for, on account of adultery 324, 325 marriage obtained by woman falsely representing she is pregnant 325 or by fraudulently representing had never been married 325 woman fraudulently representing she is virtuous when pregnant 325 false statement as to age 325 woman divorced not entitled to dower .326 adultery by plaintiff after suit to be set up by supplemental answer 655 though husband impotent, marriage good until set aside 668 condonation must be pleaded, and is a defense 669 jurisdiction in cases of, and when granted 742 requisites of complaint in cases of 742 affidavit required in cases of 742 See Alimony. DOG: servant or child, setting on cattle 375 See Animals. DOWER: when widow's right of, may be assigned 67 may be recovered, and rents and profits 140 complaint for 230, 2-32 allegations to bar in foreclosure 234 widow not barred by joining husband in fraudulent deed 325, 863 equitable suit lies for 326 parties in such cases 326 how computed in cases of alienation 326 damages for detention only from demand 326 allegations in such cases 326 if wife divorced, not entitled to 326 husband fraudulently convoyed just prior to marriage 326 lapse of time with knowledge a waiver ,326 See Advancement ; Redemption ; Specific Performance. DRAIN: See Negligence. 942 INDEX. DRUGGIST: paoe. liable to husband for selling wife laudanum 348 negligently selling articles 390, 391, 851 cause of action against for causing death survives 851 See Abatement and Kevivok. DRUNKARD: allegations as to appointment of committee 22S DRUNKENNESS : servant discharged for 493 DUE: how fact that debt is due to appear 171 meaning and construction of impleading 199, 806 what presumptions as to when cause of action due 255 if complaint show is not, demurrer lies 256 how far complaint must show debt due 755 DULY : t allegations that " duly " performed 179-181, 209 DUPLICITY : meaning of and when allowable 263-264 DURESS: note given while under imprisonment for civil damages void in hands of payee 670, 863 so one with notice of facts 670 though criminal charge not compounded 670, 863 and though full amount thereof be due 670 terrifying woman by duress of husband 670 whether imprisonment must be lawful 670 exists through threats made several days before, if not withdrawn 670 employer compelled to pay through conspiracy 67U See VoLtrNTARZ Payment. DUTY: not enough to allege was defendant's duty 218 BASEMENT : to iish in one channel does not exist if channel changed 670 one purchasing an alley does not lose though some evidence of abandon- ment 863 EJECTMENT : who may be made defendants in 130 what may be .ioined with 143 complaint in 230 by vendor against vendee 230, 231, 321, 465 how title to be alleged 231 recovery of rents and profits 231, 232 requisites of complaint 326 defendant must be iii active or constructive possession 326 complai7it must allege defendant in possession 326 must show plaintiffs estate and right to possession 326 constructive possession by defendant sufficient 326 so claim of title if unoccupied ^ 326 not for street against municipal corporation 326 otherwise against a railroad 327, 409 wife not to be joined unless has legal estate 327 wheTi landlord and tenant may be joined 327 allegations in such cases 327 lies for narrow strip 327 but sheriff not compelled to deliver possession 327 INBEX. 943 EJECTMENT — Continued : page. mother of infant cannot serve notice 351 does not lie by purchaser under second mortgage against first mortgagee, 413 defendant may set up equitable defense 630 defendant may set up equitable title 033 when an advaucemeut by parent good defense 664 staying proceedings on payment of rent and costs 702 but not if for not repairing without security 703 nor if for sub-letting contrary to covenant 703 ELECTION : when defense stated in different ways how far compelled to 607 motion to compel party to elect on causes of action 144, 863 when court will compel and when not 150, 193, 22;i, 863 allegations when may elect whole sum to become due on breach 304 where party has several remedies and elects one 485 to do certain work or pay money 486 if has suit on counter-claim and sets up as defense bound to elect 588 when workman may elect whether will make three or four models 691 to rescind contract 694 when not compelled on trial though misjoinder 749, 863 ENDORSER : of non-nogotiable bill or note 135 action by payee against endorser before delivery 327 allegations in such case 327, 328 proof necessary 328 of non-negotiable instrument 328 allegations in such case 328 whether may recover where pays note without protest 383 paying note mistakenly, supposing was protested 467 maker cannot verify answer for 644 in suit on agreement to endorse must allege tender of note 701 See Denial; Promissokv Nutks. EQUITABLE DEFENSE : defendant may interpose 587-590 how to be pleaded 589 defendant may interpose 633, 634 EQUITY: if acquires iurisdiction will do complete justice 476 how far Code has abolished distinction between law and equity, 20, 24, 32 40-51, 135, 138, 140, 141, 227 distinction between law and equity, how practically applied 24 legal and equitable relief may be granted 26, 31, 32, 135, 274 but must not be inconsistent 31, 141 how legal and equitable causes tried 141. 274 complaints in 227-229 See Pleading. EQUITY CASES : how to be tried 789 issues settled for jury 791 ESCAPE : defense for, how pleaded 563 plea by sheriijf that debtor worthless 565 ESTOPPEL : when married woman estopped by representation 372 or by acts of husband 371, 372, 876 when vendor estopped by judgment against vendee 473 bank with which assignee deposits may set up assignment fraudulent . . 633 facts which create must be pleaded s 670 though if proved without objection good defense 670 merely standing by without remonstrance does not create 670 owner signing statement as to value of property 670 attorney prosecuting note in name of another not 673 one erroneously fixing boundary estopped in trespass until revokes, 450, 704 seller not estopped from showing property taken from him by para- mount title 705 by parties inserting large consideration to defraud another 867 944 INDEX. EVICTION : PAGE. damages for, by lease 317 must be before vendee can recover of vendor i73 EVIDENCE : of facts not to be pleaded 38, 39, 187, 216, 244, 249, 269, 590, .594 of what property sold for on question of damages 472 EXCEPTION: how exception to promise alleged 170 difference between and reservation 480 EXECUTOR AND ADMINISTRATOR: when proper parties and when heir 94 when creditor may sue with fraudulent purchaser 127 when to be defendants in mortgage foreclosure 1.32 when may be joined with survivor 110, 118, 119 one suing another 112 contract by testator arid one by executor 142, 145 action for conversion between death of decedent and appointment 213 must allege appointment 226 foreign may transfer good title 298 liable personally to attorney 300 personally liable to counsel 328, 665 so for monument 328 may sue in own right for money deposited as 328 liable personally for rent if he occupies 329 though plaintiff describe himself as, may recover personally 329 may recover as such if carries on testator's business 329 if carried on for benefit of estate, and so alleged 329 may recover on covenant not to cut timber 329 husband died without taking letters on wife's estate. . ." 329 husband takes as such and not as administrator 329 except where wife leaves descendant 330 second administrator may sue representative of first 330 allegations in such case 330 may set aside fraudulent transfers 338 bound by guaranty " until notice " 344 agreement that surety shall control funds 350 liability of each where joint bond given 362, 772 take purchase-money of real estate and necessary parties 434 widow may sue any one but representatives .- 454 not to pay interest on mortgage on lands devised 467 not allowed if pays invalid claim 489 when suit against individually, no bar to one against as 497 plea that, had fully administered before notice of plaiutiff''s claim 604 may compel temporary collector to account 667 but proceedings before surrogate a bar 667 if administrator sell after notice of, will be liable in trover 671 and cannot show admiuistraticm of assets 671 when existence of will concealed and administration revoked on dis- covery of 671 if acts in good faith, protected 671 and third persons, whether administrator, bona fide or not 671 widow acting as de son tort cannot give title to property of husband 671 when short statute of limitations applies in favor of 679, 680 suit for debt to after decease of intestate, cannot set up demand against deceased 695 sometimes allowed to take back what have tendered 701 whether new promise to a departure 719 bill for legacy and personal debt multifarious 751 EXEMPT PROPERTY: in trover for need not allege was 330 articles continue, though owner on way, to sell or exchange 330, G71 creditor cannot reach cause of action or judgment for 3.30 otherwise, when proceeds invested in property not exempt 330 otherwise, if property not exempt 671 INDEX. 945 EXEMPT PROPERTY— Continued; page. if officer intend to justify selling, must plead judgment 563, 671, 863, 864 what raises question of fact for jury 671 EXEMPTION FROM ARREST. See Aerest, Exemption ekom. EXPECTANCY : when assignable 67, 68 EXPERT : agreement to pay more than legal fees 350 EXPRESS COMPANY: duty as to dellrery 331 stipulation as to first company not available to second 331 delivery to teller of bank 331 duty of, in protesting note 331 See Cakkiek. EXTENSION OP TIME: to perform must be pleaded 563 if creditor accepts interest in advance, operates as 672 promise by debtor not to pay till certain time, no consideration 672 nor is payment ol'.part of amount due 672 when action does not lie on agreement to extend time of payment 692 may be found from circumstances, as paying interest in advance 699 FACTOR: demand necessary against foreign 322 SeeBKOKBH; Commission Merchant. PACTS : and not conclusions to be pleaded 36, 38, 39, 40-51, 184-196 what are facts 184r-196 to be pleaded according to legal effect 184-196 must allege facts showing duty 218 , to be alleged with certainty 228 showing defendant claims interest to be alleged 237 and not evidence 349, 269 particularity of statement required 259 to be plainly and concisely alleged 266 without repetition 266 if pleaded, not necessary to allege intends to rely on them 270, 886 which operate as a defense to be pleaded 567-569 See Answer: Complaint. FALSE : denials not stricken out as 546 FALSE IMPRISONMENT: may not be joined with slander 139 but may with assault and battery 139 so malicious prosecution 139 when complaint for, and not for malicious prosecution 331, 369 when private person may arrest without warrant 331, 332 when officer may 331-334 lies for extorting money, though process valid 3-32 justice cannot commit unless brought before him 332 liability for arresting on telegram 332 party pointing out offender or stating facts not liable 332 teacher improperly detaining pupil for charges 333 does not lie for arrest of privileged person 333 intruder refusing to leave may be given over to officer 333 officer went away and returned with assistance 333 119 946 INDEX. FALSE IMPRISONMENT — Gonlinued : page. complainant not liable though justice erroneously held probable cause. . 864 warrant a protection though very general Slit complainant who merely delivers warrant not liable 864 otherwise if directs arrest of party 864 FEDERAL COURTS: how State statutes pleaded in 43B /S'ee Demukkeb. FELON : effect of his conviction 99 PENCE : right to enter another's land to repair 450 FERRY-BOAT : liability for horses jumping overboard 389 FINDER: remedy of one on whose land logs carried 491, 492 remedy of one finding boat adrift and preserving 864 not entitled to reward, nor can he use property found 889 FIRE: when master not liable for, negligently kindled by servant 302 railroad company ran over hose 384 FIXTURE : bailee making of personal property 460 FOLIOBD : all pleadings over two folios to be properly 808 remedy if not 809 party objecting must be technically correct 809 FORBEARANCE. See Extension op Time. FORECLOSURE : defendant may have, in suit to restrain 631 defendant may ask to have mortgage canceled 631 See MOKTGAGE FOKEOLOSURE. FOREIGN JUDGMENTS. See Canadian Judgments. FORFEITURE : defendant not bound to answer if subjects to 600 FORGED CHECK OR PAPER : liability for money had and received on 334 so in trover 334 drawee bound to know drawer's handwriting 334 so as to amount 334 clerk abstracted check and forged indorsement 3:U negligence in leaving blanks 334, 673, 864, 865 paper written with pencil 334, 672 stock transferred on forged transfer 335 payment in counterfeit money 335 delivery compelled of bill transferred on forged indorsement 335 promise to pay by one whose name forged without consideration 669 if taken in payment does not extinguish original claim 690 surety signed paper to which name had been forged 698 wheu grantor bound by deed stolen and altered 865 liability of drawee who pays a forgcsd check 866 when may recover back what he paid on 865 INDEX. 947 FORGERY : page. bank mistakenly said to drawee hold bill of lading 379, 471 is not to erase iudorseraeut of payment 876 See Money Had and Rbcbived. FORMER SUIT: when recovery by bailor or bailee bars suit by other 301, S.",^ how far judgment recovered by mistake for part conclusive 37S, 379 how far by general owner bars bailee, and vice versa 7H, sri.'i what good pl<'a of... :i(iL' :,().'! judgment in quaere chtusum no bar to action taking personal propevt\ . 4t.S when vendor bound by, against vendee. . .'. -IT.'i if pleads compromise of, should plead former suit pending V.K mere plea of, by third person, invalid unless he owned cause of action, 197 how discontinuance affected 197 peudeucy of suit against one individually, when no defense against him as executor 497 pendency of suit for goods sold no bar to one for conversion 197 otherwise if proceeded to judgment 197 suit in State courts when bar to suit in federal 498 and note li, .'^(m so suit in another State 19M though suit in another State sometimes stayed I'.IS judgment for part and payment no defense if agreed to pay balance .500 must be pleaded 5(H unless proved without objection ."ifil judgment after issue joined .564 though record just made up .564 under denial of judgment, may show subsequently vacated 565 defendant not bound to interpose counter-claim 636 judgment not impeachable by known equitable defense 636 when counter-claim barred and when not 637 where damages subsequently accrue or continuing 063 though executor may compel collector to account proceedings in sur- rogate's court a defense 667 dismissal lor defect of parties no bar 072 or before verdict 672 so verdict on ground claim not due 67'2 otherwise if in fact due, though verdict on ground not 672 dismissal on merits a bar 672 though without prejudice 072 how far judgment against one of several wrong-doers 672, 714 would be on payment thereof 072, 714 unless in its nature could only exist against defendant 672 recovery against firm for goods sold no bar against one for fraud 673 if one wrong-doer pays part of damages maybe deducted in suit against another 673 unless received in full satisfaction, when a bar 673 if one be imprisoned and discharged is satisfaction as to all 673 in recovery for property and payment vests title in defendant 673 by relation to the time of conversion 800 if one partner commence suit for accounting, suit will not lie by other, 673 though asks extended relief 073 attorney prosecuting action on note in name of another not e.-^ti'iiped . . 673 if suit on warranty defendant not compelled to discontinue suit for purchase-money 073 a recovery for one would not bar other 673 otherwise if lor same cause of action 637, 038, 039, 673 nor will judgment against one for continuance when has sold 673 how far surety bound by suit against or in favor of principal 673, 866 FORMS : of action, how far abolished by Code 33, 40, 51 FRAUD : who may be joined in actions to set aside different fraudulent trans- fers 108, 140 broker and purchaser for fraudulently selling and buying 112 waiving and suing for goods sold 190, .^77 if surrender of instrument obtained fraudulently not extinguished .... 191 948 INDEX. FRAUD — Continued. page. mouey procured by 1 93 when aotiou sounds in, and when in warranty 19'.', 193, W7 difference tietwcen and warranty '-''1. *"^7 allegations of, when material, and when may recover notwithstancj- ing 251, HTT facts showing to be pleaded ~70 agent liable lor, though principal sued "92 by master or owner of vessel as to its character 307 goods fraudulently purchased 'JOg action against assignee of such goods 309 as a ground for divorce 3:.'-l:, 32i> widow not {jarred of dower by joining husband in fraudulent deed. .335, 86o husband oonvejdng real estate just before marriage 336 on aged or imbecile person ."oS, 806, 867 person in confidential relation 'iSO conveyance not set aside for if equitably ought to have been made 806 must be the cause of the injury 3-36 no action where injury from defectiveness of papers 336 complaint must allege plaintiff relied on representations 3.36 and defendant made them to induce plaintiff to do act 336 falsely representing a neighbor had sold his hops 336 in representing purchasing as agent 3.37 not necessary defendant sliould be benefited 337 lies for fraudulently inducing one not to perform invalid contract, 337, 738 otherwise, for merely refusing to deal 337 misrepresentation as to price offered 3;37 liable for, though refuses to warrant 337 and notwithstanding contract in writing 337 not pointing out patent defect 3-37 in renting house unfit for occupation 337, 365 otherwise, if condition discoverable 3.38 in making representation to arbitrator 338 money paid on award so obtained may be recovered back 339 in inducing witness to commit perjury 33s when principal not liable for on constructive notice 33>i if transfer set aside, may stand as security .338, 841, 806 evidence on which found 3:58 constable obtained indemnity concealing prior levy 3-58, 350 executor, etc., may set aside fraudulent transfer '>i^ in action to recover damages, not necessary to rescind 339 when action against infant does not sound in 350 when relieved against in cases of intoxication 3(in inadequacy of price not alone sufficient 360, 866 in obtaining release or satisfaction 366 one who, with notice, receives money fraudulently obtained '583 effect of, accompanied by mistake 376 in purchasing of a reversioner 417 remedy of seller in case of fraudulent purchase t'lil bill to set aside will procured through undue inffucnce i81 must be pleaded as a defense 561 rescission on ground of, must be pleaded .561 bank with which assignee deposits ;may set up assignment fraudu- lent 633 bankrupt discharge no defense to action to rescind 666 no defense to surety in undertaking tliat principal guilty of 671 under plea that property not plaintiffs, cannot show sale to plaintiff fraudulent 674 selling art of preparing medicine and allowing to use seller's name on ' labels 676 in suppressing facts, how far prevents statute of limitatious from run- ning 681, 083 when new contract deprives of right to rescind for fraud in original. . . 694 woman little versed in business, signed contract did not understand. . . 0!)7 "when complaint in, and uidess sciejiter plaintiff cannot recover 841 representations as to wliat would do in future not li-aud 841 alleged conveyance fraudulent proved it amounted to a mortgage 841 length of time before and alter transaction, condition of party may be shown discretionary 807 INDEX. 949 FRAUD— C'07i((w(C(i'. PAGE. marriod woman cannot .ivoid for fraud of husband unless dunss 867 if parties to defraud another insert wrong consideration estopped 867 !4 may be a guest though stays for months :i54 liability where keeps a safe and posts notice 354 liable for goods stolen delivered to guest preparatory to leaving 354 has lien on goods of third person 354 liability for furnishing improper food 471 guest regularly at hotel certain days of week paying agreed i>ri(;e 871 INSANE PERSON: liability of physician for reporting that one is insane 896 INSOLVENCY : not presumed 389 956 INDEX. [NSUFFICIKNT REPLY; page. how objection Cli;i,t is to be tiikcn 7'Zl., 7'.l'.i INSURANCE : one partner selling to another not sale within condition 398 complaint in such case '.i9S to A, loss, if an J, payable to B 354 when subsequent erection of steam engine does not avoid fi/7 by-law that suit shall be lirought in particular county 677 that suit shall be bi'ought in State whc^re company located 677 that suit shall be brought within one year from loss 677 fact that not so brought must be pleaded 871* slight evidence of waiver thereof sufficient (i;7 clause that amount to be fixed by directors, and it dissalisfied suit to be brought within four months does not apply to actionfor amount fixed, 677 does not apply until right to sue, though clause " after loss accrue," 677 tender of premium equivalent to payment 703 one insured by accidental policy guilty of uegligeuce 883 INTENT : when immaterial 325 bad, not alone actionable 455, 460 of plaintiff, need not be answered 605 INTERPLEADER: at common law 355 equitable interpleader 355 suit in nature of bill of 355 what complaint should state and offer to do 355, 356 affidavit to be annexed 356 j udgment plaintiff entitled to 356 preliminaiy trial as to rights o E plaintiff 356 plaintiff not obliged to serve defendant's answers 357 how defendants to obtain copies thereof 357 one defendant issuing commission 357 .iudgment that defendants interplead .ioj how their rights determined '-i'lT practice where a defendant asks for under Code :j."i7, 360 one party's claim may be legal and other's equitable 360 when plaintiff not entitled to, but must pay costs , 360 when one defendant obliged to pay to another 360 lies between parties claiming a reward 360, S73 between towns in case of tax 443 INTOXICATION: when relief granted in oases of ■ 360, 872 at time of contract, must be pleaded 563 IRREGULARITY : how attorney should appear on motion for 157, 158 curing after motion 154, 778 cannot be corrected after motion without paying costs 830 but may after papers prepared if not served 831 how far process irregularly issued a protection 873 IRRELEVANT AND REDUNDANT MATTER: allegations of charge and, pretense stricken out 30 nor for discovery 49 matters of evidence not be pleaded as facts 39 not be set out 238 demurrer cannot be used to strike out 735, 754, 761, 771 cannot move to strike out entire defense or answer 771 one defendant cannot set up rights :is against another 591, 610 demurrer will not lie if mixed with good defense : remedy by motion.. 591 if whole answer bad, remedy to demur 591, 593 but see where entirely irrelevant 593, .594 what is irrelevant 591, 595 motion takes place of exceptions for impertinence 591, 592 conclusions of law 592 test to see whether can be put in issue 592 recitals, stories, conversations, etc 593 INDEX. 957 mBELBVAlSTT AND REDUNDANT MATTER — Contimied : page. statement to discredit witness 592 when matter will not be expunged if affects other matter .593 allegations must be in ordinary and concise laugiiage 594, 595 and without repetition .594, 595 when stricken out of reply 718 including such matter ought not to be encouraged but party punished for 831 what is 239, 240, 241 remedy for 240 waived unless motion to strike out 240 when motion to be made and waiver of 240 party must be aggrieved 240 when is 240, 241-243 If not subject of issue 246-252 trivial and unimportant '.!i2 matters not necessary to establish cause of action, when proper 243 as to aggravate damages 245 as to costs 248 special damages 244 how such damages to be alleged 245 what are and what not 245, 246 when must be alleged 245 in slander 246 must specify part objected to 2.50 entire pleading not struck out as 250 but if part only must be by motion 250 statement of facts showing right to arrest 2.50-353 what allegations are 253 what not 2.54 allegations against those not parties 263 multiplicity of matters 257 if irrelevant matter mixed with proper remedy by motion 266 may be stricken, out 590 so if scandalous or impertinent 590 facts, not evidence of, to be pleaded 590 that plaintiff had unreasonably refused to make partition 590 See Sham, etc. ; Surplusage. ISSUE : definition of 779, 780 of two kinds, of law and of fact 780 definition of each 780 may arise upon different parts of same pleading 781 but must be to entire cause of action or defense 781 what are material issues 781 must be single, and explanation as to what is 782 must be certain^ and explanation as to what is 783 must be material and meaning of term 505, 515, 783 what is an immaterial issue 784 what is a material issue 784-788 any thing which bears upon relief asked for 784 formerly immaterial issue disposed of by repleader 785 in what oases it was ordered 785 how far may be ordered since Code ^. 786, 7^8 judgment on, may be ordered ii,on ohtitante veredicto 786 so where complaint does not state cause of action 786 immaterial issues not to be tried 786 judgment to be secundum allegata et probata 787 how issues tried 788 when seCtled in equity cases for jury trial 791 defmition of, by court of appeals 813 See PiAOB Off Tkial; Trial. JOINDER OF ACTIONS : of legal and equitable actions or defenses, allowable 20 as executrix and devisee 110 so contract with deceased and with representative 110, 872 but if relief sought individually and as representative 110 nor against part individually and part as trustees 110, 873 958 INDEX. JOINDER OF ACTIONS— Contimted; page. nor can plaintiff unite cause of action individually and aa representative, 110 nor individually and as one of public Ill nor actions against all jointly and some severally Ill but may for a legacy charged upon land devised and for money had and received Ill against maker and guarantor llij, 126, 127 what may be joined 130, 134 legal and equitable causes (see equity — law) 140, 141 vrhat arises out of the same transaction 136, 148 specific performance and for use of premises 137, 141 for reformation of contract and damages 137, 140, 141 to recover for work and labor and to set aside fraudulent award thereon, 139 goods sold, money had and received 139 but not goods sold and one where gravamen is tort 142 nor assumpsit and tort 142 malicious prosecution, libel and slander 139, 147 assault and battery and false imprisonment 139 assault and battery and crim. con 147 injuries to person and property 139 injuries to real estate 139, 143 but not ejectment and for daviages to land 143 injuries to stereotype plates and not printing, etc 140 for surplus on mortgage sale and delivery of notes 140, 117 in partition against one defendant for lien and other for moneys paid to extinguish liens 141 in actions to set aside different fraudulent transfers .'.lOS, 140, 141 ejectment and for rents and profits 143, 147 ejectment and trespass 143 dower and for rents and profits 140 consignee against carrier for conversion and for sum overpaid 140 different causes against constable 140 for detaining property and injuring it 140 for goods sold and to rescind contract and recover price immediatelv . . 141 must affect all the parties 141, 143, 144, 148 in favor of all the plaintiffs ; 141, 144, 148 and against all the defendants 141, 144, 148 claim in favor of and against, personally, and as survivor 145, 140 what may be united as injuries to person 147 what as injuries to property 147 Code has not changed equity rules as to joinder 151 what may not be joined in favor of and against defendant individually and as representative 134, 145, 872 but otherwise, personally and as survivor 145, 872 must all belong to one of the designated classes 135, 141, 144, 148 ejectment and trespass ■ 136, 14:^ what arises out of same transaction 136 replevin and breach of contract 138, 143 trespass or trover, and against carrier on common-law liability 138 Blander and false imprisonment 139 slander and assault and battery 141 against broker for fraudulently selling, and purchaser for reconveyance, 142 contract by testator and by executor 142, 145 action against husband for his acts and also those of wife 143, 145 when may be joined 143 absolute and limited divorce 142 tort and assumpsit 142 penalty for doing act, and injunction to restrain further continuance. . . 14.3 trover and replevin 143 ejectment and for damages 143, 145, 147 breach of contract, and assault and taking contract away 143 false imprisonment, and money had and received 14;i against A for obstructing light, and B for co'.itinviing 14:^ against survivor aiid representative for breach of trust, and to reach trust fund 872 assault and battery, and trover by another of defendants 145 must affect all the parties 148 must not require ilifferent places of trial 148 must be separately stated 148 remedy for misjoinder 143 INDEX. 959 JOINDER OP ACTIONS — Cojitmufid. page. trespass ou lands and to personal property 7i9 on award only one cause ol action, though states facts fully 749 See Demubkeb. JOINT CREDITORS: one releasing his half after and before suit 663 JOINT DEBTORS: proceed iugs in actions against 62 when the statute applies 63 judgment to be entered against 63 when all must be made defendants r 118 if not jointly liable, cannot be joined VZ2 except notes, etc 133 and when jointly and severally liable 123 maker and guarantor 135, 136, 137 method of proceeding against one not served 360 cannot plead statute of limitations 361 effect of judgment against one not served 361 representatives of, cannot be summoned 361 what is gist of action 361 new action against both proper 361 but should not be brought if statute ol limitations has run 361 proceeding to be only against defendant not served 361 form of summons 361 no provision for complaint 361 what answer to be to 361 lies on contract, though wrongful refusal alleged 363 liability of, of administrators executing joint bond 363, 873 allegations upon a foreign judgment against 363 JOINT OWNERS: whether one of demand may sue for his share 498 JOINT OR SEPARATE ANSWERS : when defendant may or should so answer 609^-612 may answer separately when several judgment proper 609 but should answer jointly where interest same 609 does not apply where each liable to account, etc 609 when defense personal, and may answer separately 609 so in torts 610 when only entitled to one bill of costs, though answer separately 610 remedy if one answer and other defaults 610 JOINT AND SEVERAL DEBTORS. See Counter-claim. JOINT AND SEVERAL DEFENDANTS : when denial good as to some 533 answer of one no benefit to another 734 JOINT AND SEVERAL LIABILITY: how parties may be proceeded against 123, 125, 136, 137 remedy in such cases 135, 136 JOINT-STOCK ASSOCIATION: how president or other officer to sue and when 97 how sued 133 when stockholders liable 133, V,ii how liability of members of to be averred 171 suits by stockholders 884 JUDGMENT : how pleaded 308 how foreign, isleaded 208 in action upon, should allege leave to bring suit 363 form of such allegations 362 960 INDEX. JUDGMENT — Continued. page. must allege " duly " given or made 362 OT facts showing jurisdiction 362 It foreign judgment, must set out facts 362 except judgment against plaintiff for costs 362 allegations in actions upon justices' judgments 363 what not an appearance to confer jurisdiction 362 though /acts must be pleaded, what good on plea of former suit 362, 363 if inferior court, must allege cause of action arose within jurisdiction.. .363 if foreign judgment, facts must be alleged though a superior court 363 appearance prima facie sufficient 363 foreign appointment in bankruptcy not sufficient 363 allegations upon a foreign judgment against joint-debtors 363 remedy when for too much 370 may be pleaded in answer as duly given or made 581 what defendant setting up obliged to prove 581 separate, when one defendant answers and other does not 610 where applied for on default 793 remedy when part of causes of action admitted 803 if facts pleaded, any, proper to be allowed 830 See Canadian Judgments; Belief. JUDICIALLY NOTICED : matters so noticed not to be alleged 228 what is 254 .rURISDICTION : when courts of this State how far injury in another 730, 739, 872 so in cases of maritime jurisdiction 873 how question of, in such case, determined on demurrer 730 how determined on motion 730 if has of subject-matter, appearance will confer 872 See Copyright; County Coukt; Demukbeb. JUROR: privileged as to what says in jury room 696 .TURY TRIAL : when waived 408 See Issue. JUSTIFICATION: under chattel mortgage or judgment and levy after conversion 565 under title, right of way, etc . , must plead facts ,582 when may be pleaded with denial .'j85 officer having two processes against property, one invalid 677 though declared entered for another purpose 677 if against person, cannot justify under valid, unless arrested on it 678 if arrested on void cannot detain on valid 678 if officer has two must plead both 678 when must and when need not plead judgment 863, 864 under process irregularly issued 87;! See Aebest, Exemption ebom; Exempt Property; Inconsistent; Libel AND Slander; Ofeioer. KNOWLEDGE. See Soibntbe. LACHES: in moving to file supplemental complaint 288 defendant must plead as a defense 663 embarrassments by adversary sometimes an answer to GSO good reason for refusing injunction to restrain use of trade-mark ..:... 704 amendment not allowed if moving party guilty of 833 when party guilty of, not entitled to specific performance 894 See Reasonable Time. INDEX. 961 liANDLORD AND TENANT : page. damages when landlord does not repair 320 may be joined as defendants in ejectment 337 fraudulently letting house unfit for occupation 337 otherwise if discoverable by examination 33S action against lessee on covenant will not make alterations 303 so for injuring demised premises 363 letting farm on shares, hay to be fed to stock, extra hay belongs to lessee, 364 but lessee in possession may feed stock 36-t remedy of lessor on covenant not to underlet 364 lessee restrained from using contrary to covenant 364 and mere recital of purpose sufficient 364 and boarders may be restrained from carrying on business 364 in ejectment on ground of forfeiture, receiver appointed 364 laudLlord not bound to repair, iinless agrees to 364 and, if so agrees, only after notice 364 unless stipulation for right to enter and repair 364 subsequent agreement to repair, without consideration 364 tenant selling goods at auction, on landlord's promise, invalid 365 tenant liable to third person for want of repairs 364 landlord is not 364 unless created state of affairs before letting 365 and not then, if tenant's use is what produces injury 365 landlord of ferry not liable to servant of lessee 365 tenant may leave, if apartments unfit from overfiow of privy 365 otherwise, if occupies whole house 365 so, if trouble may be discovered and removed 365 no implied warranty that premises tenautable 365 though guilty of fraud, if knowingly conceals defect 365 if tenant vacates within reasonable time after discovery 365 tenant necessary as party in partition suit 401 when landlord enjoined from dispossessing tenant 430, 871 when tenant has not possession, to maintain action against third per- son 431, 433 right of tenant paying lien to protect term 438 remedy of landlord for injury by tenant or another 450 tenant cannot get fire-wood or fencing timber elsewhere, and out as much 475 but may cut for self and/hired man's house 476 unless supply of timber scanty 476 liability of tenant for waste 475, 476 if landlord lets house fornierly kept for ill-fame concealing fact, liable, 633 promise by former to deduct from rent on account of leaks, without consideration 667 lease void by statute of frauds, tenant to have crops then growing, not liable for cutting 674, 873 what operates as surrender 693 whether tenant can set off damages from percolation 694 damages in such case, and how shown 694 See Ejectment; Lease; Rent. LAW. See Equitt. LAWS: public acts not be set out 228 private, how pleaded 207 LEASE : covenant not to remove hay, straw, etc., last year 316 assignee of, liable for breach of covenant 316 covenant not to use for particular business 317 agreement to repairs to be completed by 14th June 405 agreement for a rent to be fixed by arbitrators 4-30 warranty on sale of agreement for lease 474 on agreement to lease 474 See Assignee; Guabdian; Landioed and Tenant; Rent. LSaACY : who to be defendants in action by legatees 109 when one of several legatees may sue Ill when legatee sues for, court to construe will 313 bill to determine who legatee, where mistake 481 See Advancement. 121 963 INDEX. LETTERS : paoe. person reoei%'iiig may recover of sender iu possession of 365, iSf! but writer may restrain publication of 366, 407 pass to representatives, but are not assets 366 belong to widow and next of kin 366 libel for publication of 367 LEVY: cannot deprive lienee of possession 367 rights of two officers holding different 453 officer severing guard chain 454 See Exempt Pkopertt. TilBEL : when corporation may maintain 367 author for criticism 307 lies for portion of letter though balance privileged 3G7 for letter insinuating against character 367 or place of business 367 for falsely publishing plaintiff's marriage to a prostitute 307 so for libel rendered so by ej^trinsic facts 367 if not libelous per se must allege special damages 367 against member of court martial 367 See Publication; Slandek. LIBEL AND SLANDER: defendants in 129 may be joined with malicious prosecution 139 complaint iu 209-213 what words impute a criminal offense '. 209 words spoken in a foreign language 209 when extrinsic facts required to be proved must be averred 209, 210 inuendo, what is 210-213 cannot be traversed 211 when material and must be proved 212 , colloquium, what is 210-213 illustrations 210-213 matter of inducement 210, 211 may be traversed 211 how far malice to be averred 211 must aver speaking or publishing 212 precise words to be set out 212 words not alleged cannot be shown.-. 212 even to prove malice 212 unless barred by statute 212 time and place immaterial 212 charge of uuchastity against female actionable, by statute, in New York 213 special damages iu 223 defendant may plead truth and mitigating circumstances 571 defendant may deny speaking, and Justify 572 how far answer may be hypothetical 572 may plead was privileged 572 but should plead the facts showing privilege 578-580 must plead the /acts showing •justification 573 justification must be to entire charge 573 to charge plaintiff was a thief may allege various thefts 573 may plead mitigating circumstances without justification 573-575 matter in mitigatiim must not be scandalous 575 and must be such as haw recognizes as mitigating 575 bad character of plaintiff admissible 570 facts and circumstances to disprove malice 576, 577 circumstances must be such that mislead person of intelligence 577 must show had been informed thereof 577 and he believed them to be true 577 that spoken in heat of passion from plaintiff's acts 577 so any /ui'/s tending to mitigate damages 577 that defendant published on infornuition bad 577 if in mitigation must be so stated 57'i' INDEX. 963 LIBEL AND STjANVEn— Continued: pagb. whether demurrer will lie for this defect 577 what must plead where reported plaintiff had failed 577 whether may show mitigating circumstances not pleaded 577, 578 supposed privilege may be relied upon in mitigation 579 should plead privilege 578 denial of malice not sufficient 579 if privileged on happening of events must show they happened 578 if privileged no action lies 579 this defense may be interposed without denial 579 not necessary to allege express malice 580 if necessary to allege express malice defendant may rebut 580 how far words spoken in judicial investigation privileged 580 rule of liability in such cases 580 answer in such cases 580 demurrer not proper in such case 580 words imputing want of skill to a mechanic 580 words spoken by a judge 580 requisites of answer in slander or libel 581 remedy, if inueiido, not confined to explanation 581 nor motive or intent 581 but may deny matter of inducement 581 no defense that published elsewhere ; that disclosed name and believed to be true -. 678 but such facts may be pleaded in mitigation 678 report of military officer privileged, though actuated by malice 678 not sufficient to plead true, but naust state facts showing 678 letter may be part privileged and part not 678 publication of mutual apologies good satisfaction 678 police officer accepts gratuity cannot call it blackmailing 678 though states facts, liable for conclusions 678 how good faith to be pleaded in mitigation 679 how that published in heat of passion 679 how that plaintiff's former conduct caused 679 attorney writing to next friend of the plaintiff privileged 679 If privileged, facts showing to be should be pleaded 695 in giving character to servant is prima facie privileged 695 otherwise if sinister or corrupt motives 695 if any evidence of, question of fact for jury 695 communication privileged if duty to make it, though duty of imperfect obligation 695 as report of committee on importation of adulterated drugs 696 or report to society of which plaintiff a member 696 when proprietors of mercantile agency liable 696 report of physician that one is insane 696 what one says in reply to friend of plaintiff as to whether had made charge 696 attorney's clerk said witness to be indicted 696 what juror says in jury room 696 what witness says as such 696 privileged as to one of two persons is as to both 696 as what said to rector as to his conduct and that of his solicitor 696 cannot prove isolated transaction long before 697 but may series of provocations 697 and so in assault and battery 097 LICENSE: verbal, to build dam may be revoked 479 must be pleaded 563 although may be shown in mitigation 873 if one required to have, cannot recover for work 676 parol, as to land may be revoked 679, 873 but not so as to deprive party of crops, though void by statute of frauds, 674 873 so to insert beams of building in wall 679, 873 but may be shown in mitigation 873 habitual use of path , warrants finding a license 679 to enter house must be pleaded 563, 679 so to enter to demand a debt 563, 679 before Code, could show license of tenant in common 704 964 INDEX . LICENSE — Continued : page. since Code, must be pleaded 704 of owner after agreement to oon%-ey, but before conveyance, good. .704, 873 one throwing out soil by, may sue wrong-doer 705 LIEN: fraudulent transfer allowed to stand as 3.38, 86G of innkeeper on goods of tbird person .354 remedy where fraudulently induced to release 36G where satisfaction of .judgment fraudulently obtained 366 vendor of real estate has, for purchase price 366, 873 so purchaser has for money paid if vendor cannot perform .366, 873 so for money expended on faith of purchase 366, 87.3 agreement that subsequent mortgage shall have priority .367 constable levying cannot deprive lieiiee of possession .367 foreclosure of 367 for repairs, when conveyance set aside, should be prayed for 407 of finder, for a reward 432 of one finding a boat adrift and preserving h64 of one finding and preserving logs 4? J, 491, 192 a sunken canal boat raised iti:l, 679, 874 ■when vendee has, for improvements and money paid 431 owner of one parcel paying lien on several 168 money belonging to another received on pledge 679 when broker loses, by refusing to render account 855 agreement to give, enforced 892 See Substitution. LIGHT : Injunction to restrain darkening window 3.53 may exclude by a high fence 368, 455 LIMITATIONS, STATUTE OF; action on original cause of action, and not new promise 206 defense of, can only be raised by answer 206 bars remedy not the debt 206 difference between Code and Revised Statutes 207 not proper to anticipate in complaint 255 party proceeded against as joint debtor cannot plead 361 right of some debtors to redeem, where debt of others barred 412 no presumption of payment, if owner of equity insolvent 413 when commences for digging so house falls 449 not sufficient to allege time of making, must confine to delicoy .568 if debt barred payment of part, in full will not revive 663 nothing less than statutory period bar against directors 687 agreement suit shall be brought within one year 677 slight evidence of waiver sufficient ' 677 clause directors shall fix amount, and if dissatisfied to sue within four months, does not apply to action for amount fixed 677 clause does not apply until right to sue commences 077 when short, applies in favor of executors or administrators 679,680 assignee may avail himself of, against set-off. 080 of another State no bar, if not by law of forum 680, 875 but see in Wisconsin SVo presumption of payment to be raised by plea of payment 680 payment by mortgagor coutinues mortgage against his grantee 680 note payable on assessment 680 if original stock note runs from date ' 6S0 if note of third person, taken as security, does not commence till that due 680 where account settled runs from that time 680 though not run, embarrassments by adverse party sometimes answer to laches 680 surety wrote creditor to apply to assignee for payment 681 how far payment by debtor or co-debtor prevents running 675, 681 fraud in suppressing facts, how far answer to 681, 682 agent cannot set up in action for account 682 debtor residing in another State, and doing business in this G82 INDEX. 965 LIMITATIONS, STATUTE 0¥ — Continued : page. runs in favor of stockholder from time debt due 683 when commences to run against attorney 682 he may sometimes reach money summaril}'^ 682 party brought in by amendment may avail himself of 082 trustees of ooi'poration for not making report 683 payment to extinguish one creditor's half does not revive other's half. . 683 when commences to run in favor of sheriffs 683 when indorser pays note 874 when indorser is payee 87'4 for one surety against other for contribution 874 In favor of trustee, when executor refuses to serve and court appoints, 874 must be replied to counter-claim 715 to be pleaded, and cannot demur 754 cause did not arise within six years of exhibiting bill, not good plea 785 so note not made within six years of commencement of suit 785 setting up, by amendment 830 should be allowed, if complaint shows not barred, but proof shows is. . . 830 LOST BILL OF EXCHANGE OR NOTE : need not allege tender of statutory indemnity 368 otherwise, if suit in equity 368 or must oifer, by complaint, to give 368 no indemnity necessary where instrument not negotiable 368 nor on instrument accidRntally destroyed 368 when action wUl not lie iudepundent of statute 368 unless barred by statute of limitations 368 if out of State, cannot be recovered on as 368 otherwise, if produced on trial 368 need not allege loss of 369, 875 recovery on bank bills 369 on instrument lost after suit 369 remedy in equity, though might sue at law 369 difference between a general and a special indorsement 369 LOST WILL : remedy to prove and establish 481 defendant may set up and ask that his exclusive possession be quieted, 633 LUNATIC : power of wife of , to bind 348 when lunatic heir decreed to perform 434 that was at making of contract must be pleaded 563 action for proceeding against one as 875 See Idiots, LtrNATics, etc. MAINTENANCE: when bond for, broken 303 MALICE : when to be averred and when shown in slander and libel 211, 313 how far inspector of election must act maliciously 469 may be inferred 469 sufficient that act was wrongful 469 whatever is intentionally done is maliciously done 469 how far a question in libel and slander 580 MALICIOUS PROSECUTION: may be joined with libel and slander 139 and with false imprisonment 139 when the action lies 139, 876 when complaint not for, but for false imprisonment 331, 3,69 averment of want of probable cause indisjjensable 369 good faith not sufficient ; must be reasonable grounds 309 iijudfjmenl for too much will not lie for issuing execution 309 remedy in such case 370 966 INDEX. MALICIOUS PROSEGUTIOlSr — Continued: page. but lies if mesne process for too much 370 so if payment made after judgment 370 what complaint must allege 370 when nolle prosequi a suflScieut termination 370, 87G discharge on recognizance not sufficient 370 but discharge from the accusation is 870 when no personal service, or judgment fraudulently obtained 370 against corporation 370 against an attorney 371 infant not liable for, if suit instituted by guardian 371 MANDAMUS : when lies to compel railroad company to restore highway 311 MANUFACTURERS : allegation " sold as " not sufficient to show they were 172, 565 MANUFACTURING CORPORATIONS. See Ofwcehs of Cokpokations. MARRIAGE : good consideration though husband impotent, if no divorce 668 MARRIED WOMAN: when husband to be joined with 53, 55, 60, 89, 93, tti, 123 effect of improper joinder (and note) 55 how to appear 59 suit against, for debt contracted before marriage 60, 93, 122, 123 when may or may not sue husband 61 when necessary party defendant 62 when charges her separate estate 371, 683 complaint and judgment against 371 agreement to pay for nursing sick parent 371 property purchased by husband and used on her real estate 371, 372, 876 when for fraud of husband if retains proceeds 372, 876 complaint against, for services in separate business 372 liability of executors of, on covenant 372 not liable for supper on daughter's marriage 372 liability for articles purchased for support of family 372 liable for negligence of servant 372 for mortgage she assumes 372 for rent of store 372 how far estopped by representation 3T2 may recover for leaving premises, husband absconding 372 liable for purchasing stolen property 372 in action on note, answer that was at making prima facie good 373 if sued on bond of self and husband may demur 683 objection that is, waived unless raised by demurrer or answer 773, 774 cannot avoid deed for fraud of husband unless duress 867 See Husband and Wife ; Parties ; Specific Pekfoemanoe. MARSHALING ASSETS: pai'tner mortgaged property for firm debts 373 after conveyance cannot subject to 373 nor in favor of charitable use 373 MASTER AND SERVANT: how negligence of servant alleged 221 action by master for enticing servant away 222, 223, 877 when master not liable for lire negligently set by servant 303 undertaker not liable for negligence of driver of hired carriage 373 when master liable to servant for injury by machinery 373, 374, 877 when guard required hy statute to be erected :!7 4 for want of care in selecting employees 374, S77 when not liable for injuries incident to business 374, S7 7 when master liable for act of driver .■'>74 when not liable for negligence of servant in lighting pipe 374 servant improperly piled cotton bales 374 INDEX. 967 MASTER AND SERVANT — Conlinued : page. one having building erected by contract 374 owners of vessel for negligence of pilot 37i servant negligently doing act without special orders ;>75 servant setting dog on cattle 375, 399 owner of boat for willful act of master 375 master not liable for willful and malicious act of servant 375 unless within scope of authority 375 servant left truck in street whereby one injured 375 servant threw keg out of window .' 375 though one passing by license 375 throwing ice from a roof 375 servant recovering of another owner for negligence 375 servant of sub-contractor for negligence of contractor's servant 375 one voluntarily aiding a servant 375 master ordinarily not liable for negligence of co-servant 375 master no cause of action for injuring, unless a menial servant 376 owner of yacht not liable for master firing gun contrary to orders 384 servant taking master's baggage 408 but may for own though master paid 408 master had servant's ticket and cars separated 409 master may chastise apprentice 665 in action for not teaching apprentice ; defense, that would not be taught, 683 .See Negligence; Pahent and Child; Woee ajstd Labok. MATERIAL ALLEGATIONS : what are 797-803 MATERIAL ISSUES; what issues are 781, 783-788 any thing which bears upon relief asked for 784 MEDICINE : selling art of preparing, and allowing to use seller's name on labels 676 MERCANTILE AGENCY: when proprietors of, liable for slander 696 MERGER: by judgment against one partner 403 MESNE PROFITS : how recovered 331, 332 MILITARY OFFICER: liability for injury from firing by soldiers 386 MILK: action for fraudulently adulterating 376 MINISTERIAL ACT : liability of officer for not performing 469 MISNOMER : must be pleaded 563 corrected by amendment S:i7 MISTAKE: paying another's tax by mistake 169 in suing for a portion of amount due on note 190 money paid by 193 in not inserting name of party as obligee 304 must be m^itual 376 unless accompanied by fraud 376 must, as a rule, be of facts, and not of law 376 968 INDEX. MISTAKE— CojiHiiHcrl; page. exceptions to the rule 376, 377 if deed complies with apri'euiueiit, must show in both 377 when quantity couvejed, but did not cai-rv to bounds 377 when money paid by, cannot be recovi-n^d of shei-iif' 377, 877 so not corrected, where party lionsstly relied on, if injured 377 otherwise, if not injured" 377 money paid, by third person, to creditor by mistake 377, H77 could have been recovered of debtor 377 insolvent note transferred in payment by 377 purchaser paid for too much 378 no defense, that pai-ty might ha\'e discovered 378 where second execution creditor consented dormant should be paid, 378, 381 none, if title believed to be doubtful, and turjis out void 378 otherwise, if believed to be good, and mistake as to facts 378 mere forgetfulness is 378 mortgage over-paid 378 If mind of parties do not meet is not, but failure to contract 378 such a contract will not be reformed 378 putative father jiaying, mistakenly believing mother pregnant 378 indorser believing note was protested 378 mistakenly suing for part of claim, being balance paid 378, 379 either party may apply for relief 379 if plan of property mislead, specific performance not decreed 379 bank mistakenly said to drawer it held a bill of lading 379 if money bona fide received by, must be demand 379 otherwise, if received mala fide 379 money received by, on sale of another's property 381 principal may recover money mistakenly paid by agent 382 money so paid for pension or bounty 383 so principal so paying may recover 383 in quantity of land to be leased i31 corrected and specific performance decreed i35 action for coal mined by mistake 460 may be set up in action on contract, and reformation had 631 so to restrain turning of water-course 631 consignee cannot claim, shipped in consignor's name through 683 what necessary in order to defend on ground of, or ignorance 683 that articles accidentally omitted from bill of sale 683 that part of a parish had always been treated as part of another 684 so that in broker's note accidentally omitted to conform to sam- ple 684 cannot be reformed in collateral action by persons not parties 693 See Reiokmation" of Contracts ; Yolttntabt Patmbnt. MITIGATING CIRCUMSTAJSTCES : ' when and how far may be pleaded • 5.50 cannot be pleaded as a defense except libel and slander 586, 587 how far matter in may be pleaded 566 in breach of promise that plaintiff in habit of becoming intoxicated 567 other improper conduct 567 but must be specially so offered 567 pleading matter in mitigation in libel and slander 566 may justify as to part of assault and battery or imprisonment 684 how far any matter in mitigation may be pleaded 684 demurrer to matter in 761 or may move for judgment 761 when matter in not stricken out 7'!1 facts in, usually immaterial 798 MODIFICATION OF CONTRACT : how alleged 180 long course of dealing may amount to 684 how far unexecuted sealed contract may be modified I13- parol 380, 684 may be accepted in lieu of old one 380, 68*4 MONET : negligently burned 393 INDEX. 969 MONEY HAD AND RECEIVED : page. when may waive tort 139 when paid through fraud, mistake, etc IpS, 196, 877 how far count for, allowable 196-202 on failure to perform, recovery back of money paid 197 when demand necessary 821 on forged indorsement 334 lies for money paid on fraudulent award 339 if money received hona flde by mistake, demand necessary 379 otherwise if received mala fide 379 principle of the action 380 obtained through forgery 334, 380 will not lie where defendant claims under distinct title 380, 381 distinction between such cases and cases of forgery 381 one mistakenly sold another's property 381 mistakenly consenting another execution should be paid 378-381, 877 when oflcer tie j'l ire may recover emoluments of ofi&cerde /acta.. 381, 382, 878 principal may recover money paid by agent by mistake 382 as government recovering pension or bounty 382 agent who sells note for less than face liable for amount thereof 382 one who with notice receives money fraudulently obtained 382 if married man marries woman and obtains her property 484 See Forgery; Money Paid. MONEY PAID : one who refuses to perform void contract cannot recover what has paid, 382 unless vendor refuse to perform must show his title bad 382 otherwise where vendor seeks to compel performance 383 not necessary to show authority to pay 383 sufficient to show paid on authority not countermanded 383 or express or implied request 383 as usurious note 383 void or illegal contract 383 unless forbidden 383 money delivered to be used in betting 38.3 iudorser paying note without protest '. 383 but does not apply where surety pays bill without protest against drawee 384 one surety paying without allowing other to surrender 383 sheriff arrested wrong party who made deposit 428 when surety may recover back amount paid 438 plaintiff 's agent paid charges which defendant fraudulently overstated, 878 surety paying only half may recover that 878 See Money had and Received; Vendor and Vendee; Voluntary Pay- ments. MORTGAGE : when assignment of, invalid without bond 297 action to determine amount due f)U, and for payment 310 lies though complaint erroneously alleges f uUy paid 310 agreement that subsequent shall have priority 3()7 when heir or devisee not bound to pay 373 purchaser under void foreclosure is assignee of mortgage 412 when executor not to pay 467 remedy by mortgagee for waste 474, 475 when conveyance allowed to stand as 866 Sec Redemption. MORTGAGE FORECLOSURE: when mortgagee may be made a party 108 allegations against Infants 2?'~ who proper and who necessary parties 131, 13.5 complaint in ISO requisites of colnplaint in 232-235 allegations to bar down 2^34 122 970 INDEX. MORTGAGE POREOLOSURR — Con,//;i«ecl.- page. what assij^nee of mortf^a^e must allef^e 297 allegi^tioiis when may eloct all to become due 304 purchaser entitled to crops 454 good defense that mortgagor rendered services to be applied on mort- gage 6C5 See Redemption. MORTGAGEE : in possession may recover 4.51 MOTION: after made iri'egularity cannot be corrected without payment of costs . . 154 to correct irregularity, how attorney should appear 157, 158 MOTIVE : when immaterial 225 had not alone actionable 455, 4(i0 MULTIFARIOUSNESS : if one defendant connected with part of indivisible cause of action can- not demur for 112 what is and when not allowable 263, 749-753, 878 MUNICIPAL CORPORATION: liability for work to be paid for by assessment 492, 878 liability of city for acts of street commissioner 869 See Negligence; Nuisance; Okdinanoe. NAME: wrong person of same name arrested 883 See Complaint. NATIONAL BANK : where to be sued 792 NEGATIVE PREGNANT: what is an improper denial by 530-534, 800, 813-815, 878 remedy by motion 800 NEGLIGENCE : must allege the facts showing duty 318 of servant, how to be alleged 221 need not be alleged where vicious animal inflicts injury 294, 852 of employer in letting employee steal check 334 in leaving blanks in check or note 334, 865 in signing paper written with pencil 334 in not returning counterfeit money 33.5 by gas company 340 liability of married woman for, by servant 373 master of yacht fired gun contrary to orders .384 digging post-holes near highway 3S4 owner of vault under highway gsj, covering removed by stranger :384 owner of building, when liable for injuries during erection 3S4, S7i) when liable for falling of walls 385, 879 railroad company run over and cut hose at fire 3S4, 385 diseased horses allowed to run at large 385 when jumping off car is 385, SSi) getting on car in million 880 attempting to cross in front of engine 385 standing against stationary car 3,s,", engaged in unloading Ciir backed against .385 rock fell into canal, and injured boat 385, 386 traveler injured one cleaning railway track 386 one coming on to land by license, injured 386 INDEX. 971 NEGLIGENCE — Continued : page. bridge fell 386, RS;3 railway company's premises uusafe 386, 8H0 keeping filthy water ia a vault 386 otherwise, if no negligence 386 one injured by machinery on exhibition 386 selling gunpowder to child 386 injury from soldiers firing by officer's directions 3.S6 servant of railway shut door on passenger's hand 387 railway company not providing proper culverts 387 ship owners for collision by carelessness 387 negligently remaining ignorant of facts 387, 882 knowledge may be inferred from continuance 387, Ss;i owner of vessel sunk in a river 387 workmen of municipal corporation 387 liability of for condition of streets 387 using steam engine which burst 388 two methods of doing act, most dangerous resorted to 388, 6Wi duty gratuitously performed, workmen negligent 388 owner liable to carrier for not disclosing material dangerous 388 in cases where dangerous if mixed 879 going out to try new horse which ran away 388 building let to spectators fell 388 two railways used same track, both negligent 388 servants of railway cut grass and let dry 388 goods ordered in fictitious name ; delivered to him 388 county clerk not properly docketing judgment 389 horses left unattended on feriy boat 389, 88;J if want of attention does not contribute 389, 883 failing to protest di'af t or note 389 damages in such cases 389 creditor allowing collateral security to be lost 389 allowing a policy of insurance to expire 389, 390 horse frightened by engine or fire crackers 390 by derrick or other property in highway 881 horse left unhitched In street 390 firing gun or beating drum and frightening horse 390 presumed from fact that horse loose in highway 390 passer by inj ured by ball playing in street 390 one stood outside omnibus and injured by passing team 390 one's team frightened by other's running horses 390 one's team struck by wrong-doer 390 druggist negligently selling articles 390, 851 party injured may recover though articles purchased by another 391, 851 one sold hay on which poison had been spilled 391 one finding rope attached to his chimney must not untie 391 several persons hired one to sink a sewer, each liable 391 one injured another by glancing ball shot by him 391 injury from Ice in street 391 from ice or snow falling from roof 392 railroad company fired own building and thus burned others 392, 879 plaintiff losing control of horses from rein getting under tail 392 injury from vicious cow being driven 392 servant knew floor unsound and decayed 392 managing land so as to coUeot water doing injury 880 coals dropped from engine 880 leaving loaded truck in street by which child injured 880 stepping off train of cars when slowly moving 880 one attempting to cross defective place not necessarily guilty of 880 getting out to pick berries leaving child in charge of team 880 suddenly starting train of cars 880 leaving property in highway which frightens horses 881 horses frightened by whistle of engine 881 distinction between raUway and factory whistle 881 railVay company running over one o:i track 882 railway company not fencing culvert 882 one insured by accidental policy may recover though guilty of SS2 canal contractor guilty of negligence in not taking care of bridge 882 pulling down own house without propping neighbor's 449, 879 burning building by 476, 879 972 INDEX. NEGLIGENCE— Oo/i//:yiuecJ.- page. as to water-cf )urse 477 in buildiii'; or maUitainins flam 480, 880 need not plead that plain tilTs contributed 507, 864 by maker leaving blank in check or paper 672, 868 or signing paper written in pencil so can be erased 672 plea that plaintiff was injured in highway through his own 684 in not repeating a telegram 700 See Master and Sbkvant. NEGOTIABLE INSTRUMENT: is, if payable to bills payable or order 308 NEW MATTER. See Answer; Counter-claim; Defense. NON EST FACTUM : what can be shown under plea of 566 NON OBSTANTE VEREDICTO : judgment on, when issue immaterial 786 so where complaint does not state cause of action 786 NON-RESIDENT : how fact that is, in attachment suit taken advantage of 661 jurisdiction over 740-742 when need not be made parties 748 but facts excusing joinder to be pleaded H8 NOTICE : how and when must be alleged 220 when none necessary in ejectment 230 none necessary in ejectment against purchaser in default 321, 465 constructive, when suffioient to charge with fraud 338 mother of infant cannot serve notice in ejectment 351 necessary, of necessity for repairs 364 unless stipulation for right to enter and make 364 may be inferred from continuance 887, 882 when facts lie peculiarly withiu party's knowledge 392 when one party can as well know as other ^ 392 difference between notice necessary before suit, and necessary to con- stitute cause of action 393 how pleaded .393 when vessel to be delivered as soon as completed ,393 of award 393 or by A to pay, if B shall not 393 sufBoiency of, to remove nuisance 393 particularity required in ,393 necessary, if broker intends to sell .393 one who has agreed to contribute toward i-epairing dam 393 goods to be delivered at seller's option in August .394 when once given, cannot be changed 394 one agrees to do act within certain time 394 where A covenants for further assurance _ 394 when party may perform at either of two places or times 304 or one of two articles 394 or to deliver articles to be maniifactui-ed 394 agreeing to pay what remainder sells tor 394 when notice to one of two persons insufficient 394 want of, must be alleged by ho)ia Jiih: purchaser 394 pledgee as to time and place of sale, and demand of debt 39-4 on covenant to pay what a servaii t embezzles 394 goods to be delivered on five days' notice 395 to deliver between certain days, and give four days' notice 464 under agreement to do certain \\ork, or pay certaiu sum 486 of time and place of arbitration 4S7 of defense under old practice 551, 552 broker justifying sale for not keeping up margin, when must allege 6S5 agreeing to treat sale as void, may give new notice 685 INDKX. 973 NOTICE — Continur.d : page. uone, of time and place necessary 685 may sell without, when contract provides lor 085 if notice given fixes rights of parties 685 vendee not bound to advance money to savu 685 when vendee may recover old without new shares 685 defense that third person had notified he, owned claim 685 but supplementary proceedings gooil defense 686 not bound to give, on purchase of machine, if worlied well 686 if debtor can tender at two places, must notify which chooses 701 Sec Demand ; Scienter. NOVATION : when party liable on . . -. 143 when promise to pay third person no defense 492 mere agreement by third person to pay no defense, unless novation 663 or performance 663 Sec Promise.. NUISANCE : against one for erecting, and another continuing 143 writ of, abolished ; remedy ;i38 notice for removal of .393 when individual may maintain action for 395, 883 frightening game 395 to restrain city and licensers from building embankments 395 bridge darltened windows 395 blacksmith shop, flouring mill 395 board of health may abate;. 395 deposit of mash from brewery in a public river 395 must be fixed by general laws ; particular business not 395 public school not, within condition of deed 396 barn with cellar for manure 396 city appropriating waters of a river 396 factory emitting sulphurous gas 396 not necessary to injure health •. 396 no defense that existed before plaintiff's house 396 when act authorized by legislature is not 477 judgment against one "for continuing not binding on after sale 673 no length of time will legalize 686 channel of river to be carefully guarded against encroachments 686 liability of one who erects but parts with property 086 defense that entered to abate, how to be pleaded 686 what is a reasonable manner to depend upon all the circumstances 686 cannot abate simply because annoys public 086 one sustaining special inj ury may abate 686 two methods of doing work on, may be negligence 086 if alleges upon certain premises cannot recover for an adjoining 843 cannot join one who erects and his grantee 753 requisites of complaint in action to abate 883 See Pjrivy. NUL TIEL COBPORATION : must be pleaded .519 but does not apply to foreign corporations 519 NUMBERING CAUSES OF ACTION: every cause of action to be numbered 809 remedy if not 809 See Causes op Action. NUNC PRO TUNC: when proceedings may be so taken 100, 101 OFFICERS : when to sue on contract with predecessor 73 how far and when may sue 95 974 INDEX. OFFICERS — Continued : page. how to sue 95 when revivor against successor necessary 101 when maj- arrest without warrant .331-.334 but in justiiloation should plead facts justifying C64 may detain gambling instruments 3.12 when officer dejure may recover emoluments of de facto .381, 382, 878 rule as to liability of 396 supervisor refusing to perform duty to individual 3!)fi for choosing wrong method when several open 396 having valid and invalid process 396 if arrests on invalid process cannot again on %'alid 397 breaking door where several persons occupy house 397 liability for not performing ministerial act 469 not entitled to increased compensation though duties increased 492 justification by 563 that another levied on by virtue of process against plaintiff 5(j4 where called upon to exercise discretion not liable for manner of doing so, 687 but if can accomplish object without destroying private property must, G87 where action by those of one town or county against those of another to be tried 792 where actions against, to be tried 793 cannot recover against one telling wrong person of same name is de- fendant 883 otherwise if requests or requires to arrest or to take property 883 See Commissioners op Highways; Exempt Peopektt; Justification; Malice; Sheeief; Votek. OFFICERS OF CORPORATIONS: cause of action not barred by laches less than statute of limitations 687 ONUS: when upon defendant 800 OPINION : as to value of services 492 but not how much worth " under all the circumstances " 492 ORDINANCES : how pleaded 436 of city defining nuisance 395 ORDINARY AND CONCISE LANGUAGE : allegations to be in 594, 595 OWNER: when liable for injuries during building 384 walls of building fell 385 liability to one coming by license 386 using steam engine which burst 388 to so use his own as not to injure atiother 4.51 of cattle at pasture liable if they commit injury 454 takes his wagon, but another's whiffletrees 454 See Trespass. OWNER AND HOLDER : sufficient allegation of ownership may be denied 806 OWNERSHIP : general allegation of good 213, 216 in trespass 224, 225 denial of insufficient, unless denies facts showing or alleges who is. . .517-519 569 what is, what is not good denial of 525-52S denial of, in some cases, puts plaintiff to proof 570 mere allegation that pliiintiff is, without denying facts showing, is frivolous 687 denial of all matters inconsistent with answer, not good 687 INDEX. 975 PAINTING : page. may restrain making of copies by photograph 406 PAEENT AND CHILD : how far parent liable for support of child as pauper 204 action for enticing child away 223, 223 when pareut liable for child setting dog on animals 294, 375 when married woman bound to pay for jiursing sick parent 371 action by father for enticing child 397 rule of damages in such case 397 after child leaves parent's service, being enticed 398 services may be recovered in such case 398 when child lives with mother, father cannot maintain action. . .398, 883, 884 nor for removing child beyond habeas coiinis 398, 883, 884 law will not imply promise between, to pay for services, etc., 398, 399, 883, 884 what suiflcient to justify finding promise 398, 399, 883, 884 rule applies between persons occupying relation of 399, 883, 884 note given for, by executor, invalid 399 father may contract with superintendent of poor for support of 399 father not liable for tort of child 375, 399 father may sue for loss of child's clothing .399 father may emancipate child, an,d what proves 399 father niay become liable to child manumitted for services 399 whether mother entitled to recover for services of child 399 mother of illegitimate child recovering for 400 when no liability to pay for work, board, etc 398, 399, 488^90, 883, 884 action by father for money received from child ; defense, child paid out of wages 687 See Advancement; Child; Master and Seevant. PAROL EVIDENCE: lease signed by part of firm, cannot give to show liability of others 415 admissible to contradict receipt 687 when not admissible to vary terms of note 692 where contract, to show void for stifling criminal prosecution 863 PARTIAL DEFENSE: how far available 551, 553, 605, 606 See Mitigation. PARTICULARS : bill of, no part of pleading 809 PARTIES : , change by Code as to who shall be 52 husband and wife 53 idiots, lunatics, etc 54 trustee and cestui que trust 57 when court to bring in proper ;„ ^~ who necessary parties 77-79 when very numerous 77-83 having c<:)mraon or general interest 81-83, 884 in equitable suit for dower 32fi tenant in a partition case 401 court must order necr.s.sai-j/, brought in 746, 8.')9 though necessary to reverse 859 but need 7iot those not ■tiec,essa}y 746 when have common or general interest 747, 748 if reside out of State and fact stated need not make 748 facts excusing joinder to be pleaded 748, 749 See DBMtTKKEK ; Husband and Wife; Married Woman; Infants, Idiots, Lunatics, Etc. ; Parties Defendant and Parties Plaintiff. PARTIES PLAINTIFF: rule at common law 64 in cases of assignment at common law 64 in cases of assignment in equity 64 976 INDEX. PARTIES PLAINTIFF — Continued. page. in cases of aasigament since the Code 65 assignee fiS, G8 claim assigned in parts 68 real party in interest 65, 73 who is real party in interest 73-76 Joinder of: general rule 76, 77 when court to cause to be brought in 77-79, 859 who necessary parties plaintiff 79, 80, 83 all parties materially interested 79, 80, 81 if in the issue 79 how to sue if very numerous 77, 79, 81, 8;i, 83, 108, 109, 117, 881, 894 legatees 79, 81, 82 creditors 79 one member of voluntary society 79, 884 part of ship's crew 79 how defect of, to be taken advantage of 80 how misjoinder of 80 suit by creditor against assignee to carry out assignment 81 parties having common or general interest. .81-83, 85-87, 97, 108, 109, 141, 884 member of unincorporated company .' 83, 884 all parties united in interest must join 83, 84, 85, 88, 884, 894 those having common interest, though not joint, may join. ..84, 85, 108, 109 884, 894 as several owners of mills for injunction 84 if interest conflicting cannot join M when interest does not conflict 84 when proper plaintifi' will not join may be made defendant 84, 88, 117 what allegations necessary in such case 84 who proper and who necessary 85, 88, 97 buc those having separate causes of action cannot join 85, 87 is right of defendant to insist upon and necessary parties 88, 105 remedy iu such cases 88, 89 remedy if held necessary on demurrer 89 action will not lie by employee against part of stockholders of a coi'po- ratiou 88 when suit will not lie against joint-stock association without stock- holders 97 party once insisting another not necessary cannot change ground 88 cause must be noticed for trial against all parties 89 when married woman must sue alone 53, 55, 61, 89 how married woman to appear .53 when service on husband binds her 53 when suit by husband, in name of self and wife, binds her 53, 55, 61 how far husband may control suit against both 54 execution against husband and wife 54, 60 committees of lunatics, executors and trustees of express trusts 90 when cestui que trust to be made party 93 assignee for creditors 93 people trustees for those for whom bond taken 94 executors and administrators when proper and when heir 94 persons expressly authorized by statute to sue 95 what should appear iu such case 96, 97 all public officers embraced within this clause 95 how they are to sue 95 when they may sue 95, 96 president of a bank, when and how to sue 96 when and how bank may sue 98 who authorized to sue by statute 97 substitution of parties plaintiff 97 in cases of assignment or transfer of interest 98 legatees how to sue 110 plaintiff may sue as executrix and as de\is(^e 110 one of several legatees who gave power of attorney Ill BO one of several heirs for rent Ill one creditor may sue for his share if other paid Ill same person cannot be plaintiff and defendant Ill one trustee cannot sue co-trustee for conversion ....>... 11] INDEX. 977 PARTIES DEFENDAl^'TS : paoe. one member of two firms Ill, 113 one executor suing oo-exeoutor 112 dormant partner 118 plaintiff may have part of relief ttiough others necessary for residue 884 stockholders may sue association 884 where claim assigned in parts 68 parties very numerous 77, 79, 81, 83, 83, 108, 109, 117 having common or general interest 81-83, 108, 109, 141 member of unincorporated company 82 proper plaintiff who will not join 84, 88, 117 who necessary or proper 105 distinction between 108 necessary must be brought in 88, 89, 105, 859 parties involved in the issue 106, 107 who not necessary 106 plaintiff cannot demand several matters of different defendants, 106, 107, 141 but where general right may bo joined though have separate rights, 106, 107 108, 140, 894 who proper though not necessary parties 107 when assignee maybe made 107, 114, 115, 116 when committee of, lunatic 107, 137 creditor in partition 107 mortgagee in foreclosure 108 courts of equity favor bringing in all proper parties and do justice in one suit 108 need not all claim in same capacity 108 or under same instrument 108, 140, 141 as in actions to set aside fraudulent transfers 108, 140 and so by receiver 141 all interested in account to be joined 108 as heirs and representatives, etc 108 in action to set aside conveyance for fraud, representatives of impeached estate necessary 108 in actions by stockholder 109 by creditor against officers of a corporation 109 who legatees to make defendants 109, 110 in suit against heirs 110 in suit to have stock declared fraudulent 110 in suit to reach trust funds 110 executor and representative of co-executor .' 110, 118, 119 wife necessary in partition Ill but owner of fee not in partition between tenants of life estate Ill, 336 owners of different animals cannot be sued jointly Ill nor tenants in common of a pew Ill same person cannot be plaintiff and defendant Ill one member of two firms Ill, 113 one defendant became assignee of claim 113 one executor suing another 113 attorney who assists in fraud 112, 113 in cases of fraud 112 cannot join one, no interest in result 113-114 cannot bring defendant in to contest future legal title 113, 114 effect of improperly suing one 113 objection not proper party must be taken by demurrer 113, 114 or by answer if does not appear by complaint 114 in action to set aside assiifnment, other creditors not necessary par- ties ■ 114, 137 otherwise in action to carry out assignment 81, 114 assignee of mortgage proper in suit to set aside as usurious 114 so necessary for injunction to restrain collecting judgment 137 must state facts showing how interest adverse to plaintiff 's 114, 237 not enough to allege, claims some adverse interest 114, 115 one partner or tenant in common suing another 117' joint contractors must all be sued 118 otherwise if not jointly liable 132 or on note 113 or jointly and severally liable 123 even if bankrupt, Infant, or barred by limitations 118 when dormant partner must be joined 118 123 978 INDEX. PARTIES DEPENDANTS — ConJmued; page. one interested applying to be made 118 principal and ]iot agent to be sued 123 except in certain cases 123 partners in joint-stock association 123 assignee not usually liable 124 parties to bills or notes, when may be jointly sued 124 maker and guarantor cannot be 12.5, 126, 127 except where guaranty part of same instrument 125 remedy in such cases 125, 126 executor and fraudulent purchaser 128 in creditors' biUs 128 creditors and stockholders of insolvent corporation 129 in actions for wrongs t 129 for penalty 129 libel and slander 129 in actions of trespass, trover, etc 129 causes of action must be against all the defendants 130, 135 in replevin 130 in ejectment 130 in foreclosure of mortgage 131, 1.35 in partitition 1.32 must all be interested in same cause of action 141 wife in ejectment .327 landlord and tenant in ejectment 327 husband in action for wife's torts 53, 346 grantees of purchaser under void foreclosure, to redeem 412 when heirs and representatives necessary parties 434 PARTITION: when creditor may be made a defendant 107 wife necessary party Ill owner of fee not necessary in partition by tenants in common of life estate Ill defendants in 132 will not lie, unless plaintiff in possession 133, 236, 400, 884 owner of specific lien, and one who has paid money on lien may be joined, 141 requisites of complaint 335 remedy by petition abolished 235 shares of unknown parties 236 reversioner cannot maintain 400 cannot acquire title after suit 400 rights of one tenant in common making repairs, etc 400 allegations in such case 401 tenant in, under one of owners, necessary party 401 of chattels between tenants in common 444 PARTNER : one suing another 117 how survivor may sue and be sued 146 PARTNERSHIP : suit, where one member of two firms Ill, 112 dormant partner, how far necessary 118 action for accounting between 226 surviving partner cannot assign to pay individual debts 31S on dissolution, right to carry on business in firm name 341 unless one buys other out 341 one partner suing other, to restrain violatioji of agreement for 401 rights of sheriff levying on partnership property, execut'um against one, 401 8S5 rights of other partner in such case 401 right to dissolve, whun for definite period 401 remedy of one against whom dissolved 402 two firms engaging in a joint adventure 402 liability of firm, where one gives individual obligation 402 where one is secret partner 402 effect of judgment against one 402 usurious mortgage given to one, and proceeds applied to firm debt 402 INDEX. 979 PARTNERSHIP — Continued : page. fraud of one as to firm responsibility 402 one sells to other, who agrees to pay definite sum for his interest 402 one partner cannot sue other during its continuance ; . 402 some suing others for share of profits 402 one gives Arm obligation to innocent purchaser for individual debt 403 so made during, but delivered after, dissolution 403 where party taking notice of circumstances 403 when rule that one may bind other does not apply 885 though business done in name of one, note presumed individual 403 one attorney employed, and took partner 403 partnership propertj' to pay firm debts 403 exceptions to this rule 403 retiring partner compelling other to so apply assets 403 where no covenant to do so 403 one partner becomes lujiatic 403 one person member of different firms 403 remedy in such cases 403, 404 one partner making contract with firm 404 one becoming possessed of cause of action against all 404 remedy of one partner having debt against Arm 4fl4 he may sell, and assignee sue 404 one partner selling out to other is surety 441 non-joinder of dormant partner, no defense 498 note intentionally given to one of several partners 661 so partnership note, joint and several 661 defendant did not contract as partner 661 though judgment against one for goods sold, no bar against one for fraud 673 if one partner commence suit for accounting, other cannot 673 though asks extended relief 673 partners agreeing to carry on illegal business 676 one sold out to other ; surety covenanting would pay debts ; new note given, and judgment recovered against seller 698 See SuRviTOB. PARTY : when brought in by amendment may plead statute of limitations 682 PARTY IN INTEREST : who is 72-76 assignee 65-76, 115 assignee but nominal owner 72, 74, 115 bank on draft payable to cashier 72 principal in contract with agent 72, 74 people to restrain issuing town bonds 72 holder of promissory note 72 official bond 72 grantor and grantee, land held adversely 73 consignor and consignee 74 warehouseman, carrier, etc 74 in torts 74 in actions to recover real estate 74 in trover, replevin, etc 75 purchaser not to pay till collection 75 not necessary assignee should pay any thing 75 bailor and bailee 75, 76 who trustee of an express trust 76 when holder of a promissory note is 172, 173 defendant must answer that plaintiff is not 174 how fact that party is not to be pleaded 269 mere agent is not 757 demurrer on ground plaintiffs, or one of them, not 757 so that defendant is not 758 PARTY WALL: covenant to pay half expenses of 317 right to restrain taking down 404, 880, 899 effect of parol license to insert beams of building in waU 679, 873 980 INDEX. PATENT : page. party must plead that invalid 563 in suit on note lor, defense that another issued after note given 669 jurisdiction of State courts in case of 738 sale of, to be paid for, if works 293 PATENT MEDICINE: agreement for sale of 690 PAUPER: when may recover for worlr 489 PAWNOR : when may maintain action 301 complaint in such cases 302 damages in suit by 302 PAYMENT: when party cannot recover damages without 317, 473 in counterfeit money 335 by mistalie in note of insolvent 377 usurious mortgage given to one partner and proceeds applied to firm debt 402 no presumption of, if owner of equity of redemption insolvent 413 if plaintiff admit, cannot deny ou the trial 505 admits payment of amount of demand less amount claimed 505, 529 must be pleaded 5^ otherwise if plaintiff allege 564 presumption of, to be raised by plea of payment 680 note of thii-d person is not, unless agreed to be 191, 192, 687 oni4S of, showing agreement is on the debtor 687 and may contradict language of a receipt 687 acceptance, however, suspends remedy till note matures 688 if forged, does not extinguish original claim 689 if note taken when debt created, presumption was a payment 688 and onus on creditor 688 unless sale for cash, and check taken as means of drawing money 688 though check may, by agreement, be taken in payment 688 circumstances admissible to show whether payment or not 688 so subsequent conduct of parties 688 seller requested buyer to procure draft ou New York 688 one of several makers gave new note, no defense to original 688 mortgagee rendered services under agreement to apply on mortgage . . . 688 if note payable at bank deposit of amount is not 688 remedy of maker in such case 688 credit given to agent and principal paid him 688 agent of holder borrowed money and pledged bond and paid it is not . . 689 agent to receive interest received part of principal 689 what not ratification of such act 689 check taken to be credited if account of drawer good 690 charging on books may operate as 690 such acts same as if money actually changed hands 690 payment after summons issued 690 so after service plaintiff must refuse to receive unless costs paid 690 payment alter suit to plaintiff's clerk 690 to attorney or procMen ami 427, 870 See Accord and Satisfaction ; Limitations, Statute of ; Toluntaet Payment. PAYMENT OP MONEY ONLY: what are instruments for the payment of 181 PEACE, BILL OP. See QniA Timet; Ci-otrD upon Title. PENALTY : how sued for 192, 854 allegations in action for 208 requisites of complaint for obstructing highway 404 INDEX. 981 PENA LT Y — Continued : page. action qui tarn 404 defendant not bound to answer if subjects to 600 what is so statute of limitations runs against 683 where action for, to be tried 793 when full penalty of bond to be recovered 854 Sec Vebitication. PEOPLE: when cannot restrain issuing bonds by town 443 when may restrain city from making Ulegal contract 443 PERFORMANCE : when contract performed party may sue in assumpsit 171, 193 how alleged 179-181 how refusal alleged 179 on failure, recovery of money paid 198, 885 requisites of, where time not fixed 331 allegations when waived or unnecessary 333 party seeking to recover must allege, and how 404 agreement to deliver stock, may deliver " watered " subsequently 404 sale of goods " to arrive ;" less than amount agreed upon came 404 must perform, though duty increased 405 of cargo "about 9,000 bushels " 405 if accepts less is full performance 405 laud "to be occupied for a Jewish synagogue " must deliver deed with such condition and not to covenant miming with land 405 agreement to lease, repairs to be completed by 14th June 405 when party refuses to perform need not aver nor show readiness 405 otherwise must 405 if excused, fads must be shown 405, 566 but if performance alleged, court may allow amendment 405, 566 on sale for cash, tender of seller's note not good 405 if contract assigned, tender to be to assignee 406 if one act to precede other, failure of first waiver of second 406 as to prepare a building for mason work 406 to furnish plans 406 if agrees to do within certain time under penalty, liable therefor, though impossible 406 if party to do act first may recover damages from delay 406 seller cannot recover part ; must fully perform 406, 885 if contract for coach from A, not compelled to take one from C 486 when excused by sickness or inability 490 when defendant cannot perform, plaintiff must show facts 566 and must show excuse for not offering to perform 566 may be pleaded in answer as in complaint 581 what defendant setting up obliged to prove 581 when covenants independent and need not allege 690 when contractor bound to increase number of laborers, and if does not contract may be rescinded 690 may set up work done under contract plaintiff failed to keep 691 and must perform entire contract 691, 885 but under contract to make three or four models, workman may elect 691 agreement that on failure to perform, party may rescind 694 tender late last day 885 party in default cannot recover what has paid 383, 885 when vendee need not demand 885 See AccoKD and Satisfaction ; iMPOSSiBiLiTr ; Reasonable Time; Sale; Tendeb; Woek and Labob. PERJURY: remedy against person procuring witness to commit 338 liability otwitness for 483 PEW: remedy of owner of 453 982 INDEX. PHYSICIAN: page. may restraia patient laboring under deUrium tremens 296 liability of, for report that one insane 096 PILOT : liability of owners of vessel for negligence by 374 PLACE : how to be alleged 222 PLACE OP TRIAL.: at common-law venue, local or transitory 791 plaintiff not at liberty to choose any county in transitory action, unless all the parties are non-resident 791 what actions must be tried in county where subject situated 791, 792 if proper county not named, remedy by motion to change 792 action to restrain injury to rent, estate local 792 to have conveyance declared invalid, or to be a mortgage 792 action by ofllcers of one town or county against those in another county, 792 action against national bank 792 what actions to be tried in county where arose 792 for penalty 793 against public officer 793 where other actions to be tried 793 where demurrer to be argued 794 where motion for judgment on ground, pleading frivolous 795 See Complaint. PLAINTIFF. See Parties Pladsttipi'. PLAY: suit lies to restrain acting 406 by an assignee thereof 886 acting is not a publication 406 PLEA: difference between, and answer 553 See Answbk. PLEADING : signification at common law , 7, 153, 162 in equity 7,153, 163 origin and history of, ai> law and in equity 7, 153, 162 how anciently conducted 8 modification of 9 every cause of action formerly had its own appropriate form 9 origin thereof 9 originally no distinction between law and equity 9, 13 how many different writs 10 origin of equity pleadings and jurisdiction 10 origin of distinction between law and equity 11, 14 original, simplicity of 13 final, complexity of 14 system of, before the Code 14 in an action at law 15 names and order of pleadings in 15 in equity 15, 16, 39 names and order of pleadings 16 names and kinds of bills in equity 17, 18 parts of a biU in equity 17, 19 change in, by Code 18, 28, 30 rules to determine sufficiency <>t 33 to be subscribed by party or allorney 808 not sufficient that summons is subscribed by partj' unless he is an attor- ney 80S remedy if not subscribed 808 what is good subscription 808 to be folioed and legibly written 808 INDEX. 983 PLEADING — Continued: page. it not clerk not to file 809 remedy if not 809 remedy if not properly written 809 party objecting must be teohnioally correct 809 causes of action to be separately stated and numbered 809 remedy if not 809 items of account need not be set out 809 remedy if not 809 biU of particulars no part of pleading, and not to be answered 809 cannot answer plaintiff indebted certain sum as per bill of particulars.. 810 though party may use form allowed by Code not bound to 810 confession and avoidance 811, 81!i must answer whole of what is adversely alleged 812 rule does not apply to partial defense 813 See CosrsTKTjCTioN. PLEADING OVER: when defects aided by 847 but not a defect in substance 848 PliEDGE : suit to redeem 407 remedy by tender of amount 407 though pledgee have sold the property pledged 886 right of pledgee to foreclose right to redeem 407 tender must be on day due 457 else remedy by action to redeem 457 pledgee returning stock held as collateral does not warrant 471 money paid on account of stock pledged, a counter-claim 632 lien where pledgee has notice of facts showing want of title 679 on pledge of notes maker may set up any equity against pledgor at pledge 691 pledgee liable for conversion, need not tender amount due 703 pledgee bound to protect rights of one of which he has notice 886 and can only sell in manner authorized by law 886 damages in actions by pledgee 300 when must notify of time and place of sale, and demand payment 394 PLENE ADMINISTBAVIT: when plea of, invalid 664 POISON. See Detjggist. POSSESSION. See Tbespass. POSTMASTER : if letter left with deputy to register liable if sent without, though can- not register to place directed 886 PRAYER EOR RELIEF: injunction to be prayed for 353 in action to set aside fraudulent transaction should pray for repairs .... 407 need not be answered 599 nor denied 797 See Relief. PRESUMPTIONS : not necessary to plead 37, 255, 269 what made in favor of pleading 255 in cases on promissory notes 256 may be traversed 257 that every man solvent 389 if horse running at large that owner negligent 390 none of payment if owner of redemption insolvent 413 when none of continuance of want of knowledge of facts 467 part of packages opened ; jury may find all same 472 condition long time after shipping, none same at shipjjing 472 law wiU, in first instance, imply request to perform work 491 on demurrer that agreement required to be, is in writing 074 984 INDEX. PRBSUMPT IONS — Contirvrnd ; paob. as to note of third person being accepted as payment 687, 688 that debt due .• 755 of negligence from injury 904 PRICE: how far inadequacy evidence of fraud 360, 866 PRESrCIPAL AND AGENT : when principal may sue on contract with agent 72, 74, 91, 94 agent, when may sue on contract with himself 91 which to be defendant 123 when principal liable for agent's fraud if retains proceeds 372 principal may recover money miistakeuly paid by agent 382 agent who sells note for less than face liable for amount thereof 382 credit given to agent and principal paid him 688 agent of holder borrowed money, pledged bond and paid it to holder. . . 689 agent to receive interest, received part of principal 689 what not ratification of such act by principal 689 when tender to, good 702 See Agent. PRINCIPAL AND INCIDENT : assignment of moi-tgage without bond usually invalid 232, 233 See Assignment; Considekation. PRIVILEGE. Sec Abkest, Exemption eeom. PRIVY: allegations in action for injury from 246 action lies for injury from 246 when tenant may leave on account of overflow of 365 water soaked through walls 386 otherwise where used for ordinary purpose 386 PROFERT : need not be made under the Code 816 PROFITS : when recoverable 319 See Special Damages. PROMISE: how alleged 170, 197-204 to pay when convenient 170 must be alleged 183 and how 184, 186, 197-204 in case of contract by agent 184 when to count on new, and when on original cause of action 206, 207 by debtor to pay debt to third person valid 407, 888 when implied to pay for worli 488 to pay third person no defense unless has paid 492 when may be reached by creditor 888 PROMISSORY NOTE : parties to, may be jointly sued 124 how far applies to one non-negotiable 124 does not apply to guarantor 125 allegations in actions upon 171, 172 as against indorser 172, 173, 180 to show plaintiff is party in interest 172, 173 how declared upon as written instrument 174. 179 presumptions in cases of .' 256 averment and proof when payable at particular place 303 demand unnecessary if payable at particular place 321 maker may plead readiness there and effect of 321 practice in such oases 321 demand necessary if payable on demand, at sight 321 INDEX. 985 PROMISSORY NOTE — Continued : page. ■writing " payment stopped " on 321 payable at bank, and deposit of amount there 688, 700 on pledge of maker may set up equity against pledgor at pledge 691 how far memorandum on back pai't of 691 holder agreed to call in and collect within three years 691 oral agreement to collect of securities deposited cannot be shown 693 nor to renew note at maturity 692 if holder agrees to extend time of payment, must be set up as defense . . 693 action does not lie for breach of such agreement 693 if payable by installments, default in one dishonors 692 if payable to bearer. A, not negotiable 693 whether dishonored on last day of grace 693 See Bona Fide ; Endobsbe ; Lost Bill or Exchange ob Note. PROTEST : allegations of, and how shown ': 173 damages in action for failure to 246 of non-negotiable note not necessary 328 failing to protest draft 389 if paper accepted, payable at particular place 407 allegations in such case 407 under allegation of, cannot show waiver 566 when could not protest 566 denial of, not sufficient to compel calling of notary 519, 530 what should be done to compel plaintiff to call him 519, 520 denial of presentment and non-payment 534 when foreign, may be protested by notary's clerk 887 act of 1857 only abolishes days of grace where are on face payable at par- ticular time 887 notary not liable, if follows instructions 887 PROVISIONS : warranty on sale of 471, 473 PROVOCATION : what may be shown in mitigation 697 PUBLICATION: of plaintiff's name on register of protested paper not restrained 407 of any libel 407 otherwise, of letters 407 PUIS DABRIEN CONTINUANCE: agreement to publish mutual apologies may be so pleaded 678 is error, to refuse proper plea of 832, 887 See SuppiiEHENTAL Answer. PURCHASER: action against, and broker for a fraudulent sale 142 QUANTUM MERUIT: count in 197-204 when damages according to contract rate, and not on 490 when may recover for work under, if full performance 493 if owner delays, may recover increased expense on 493, 494 QUANTUM VALEBANT: count in 197-204 QUIA TIMET: surrender of forged bill 335 surrender of deed will not revest title 408 biU quia timet will lie in such case 408 wm not lie to set aside void proceedings 408 124 986 INDEX. QUIA TIMET— Continued: page. what necessary to maintain bill of peace 408 action lies to compel surrender of usurious security 408 and bill not to be dismissed, because does not yinij premises 444 one can sue other 444 but two cannot join in a suit against third 444 one not liable to other in trespass nor is his licensee 450 one cannot oust co-tenant, and when siied for profits recover for labor, 490 or moneys expended 490 when damages apportioned on account of non-joinder of 49S what must be pi Leaded 565 before Code could show was or license from one 704 since Code must be pleaded 704 one cannot so use property as to actiuire or transfer easement 898 TENDER: allegations of, and proof of excuse 179, 181 where time of performance not fixed 321 allegations where waived or unnecessary 322 need not tender back what received if use worth more 444 nor xoorthlens stock, in action for fraud 444, 898 vendor need not tender to purchaser of vendee 445 though ordinarily tender of performance required to assignee 445 when to agent who effected sale good 898 need not allege if show party put it out of power to perform 445 in oases where purchase is fraudulent 459 where general extension 563 under allegation of, may show waiver 566 how to be alleged 568 of what seller received on disaffirmance against purchaser from vendee, 669 readiness not sufficient, must offer 700 unless dispensed with 700 on rescission must tender back what received before suit 700 and promptly on discovery of the fraud 700 otherwise if seeks to recover damages for the fraud 700 or if purchaser realized as much by use as paid 700 if purchaser abscond, when tender to wife good 700 readiness to pay a note at time and place payable 688, 700 but holder entitled to verdict for that amount 688, 701 if maker desires to avail himself of, as tender, must aver being into court 700 after summons issued 689 if after suit, costs must be tendered 689, 701 to plaintiff 's clerk after suit 689 if tender not sufficient plaintiff may take and credit 701 if defendant obtain verdict he cannot take back what paid in 701 but court may order applied to defendant's costs 701 even if plaintiff nonsuited still may take what paid in 701 court may allow executor or administrator paying in to take back 701 remedy of plaintiff if plea do not aver money bi'ought into court and not paid 701 in equity tender may be allowed at any time 701 a plea of accord and satisfaction not supported by proof of tender 701 if goes off to consult lawyer saying will return is a waiver 701 under protest, good 701 if has choice of two places must notify which chosen 701 must allege articles kept ready till a convenient time of day 701 in action for not indorsing note must allege tender of one 701 to attorney with authority good, though denies is 702 and so to one authorized to collect 702 no place designated when may be made at vendee's residence 702 it fraudulently absents himself cannot object to want of 702 but answer must allege prevented through trick or fraud 702 though absent, by acts, may waive objection was not personal 702 1004 INDEX. TENDER — Continioed : paoe. waived by refusal to receive '. 703 so where cannot perform 702 or fraudulently represented could not 702 when delivery to be at particular place must allege read i uess there 702 if no objection made at tender cannot be afterward 703 if objection on one ground cannot insist upon another 702 ordinary proceedings stayed in ejectment on payment of rent and costs, 702 but not if for not repairing without security 703 or for sub-lettting 703 to one of two joint contractors, good 703 of deed when must have certificate of county clerk attached 703 on agreement to purchase bonds 703 if pledgee sells wrongfully no tender necessary 703 debtor who has tendered goods in payment may hold as bailee 703 or at his election as a debtor 703 rule does not apply to executory contract to sell 703 of premium on policy of insurance equivalent to payment 703 when contract assigned, to whom to be made 703 how assignee must tender 703 See AcooBD and Satisfaction ; Notice ; Pekformance ; Reasonable Time. THIRD PERSONS: when allegations as to, improper 253 TIMBER : agreement for removal of 410 TIME: how lapse of, alleged 170, 171 how to be alleged 222 See Reasonable Time; Specific Performance. TITLE : surrender of deed will not revest 408 drawee accepted an order for flour, so as to pass 460 after once passed, former owner cannot retake 461 on recovery against wrong-doer, and payment vests title in 673 how right of way to be pleaded 703 should carefully describe part of close claimed 704 one who throws out soil by license may sue wrong-doer 705 If complaint shows, not barred, but proof shows is, should allow plea. . . 830 See Goods Sold ; Reasonable Time ; Sale ; Vendor and Vendee ; "Wak- RANTT. TORT : what causes of action sounding in, may not be assigned 65-67 when may be waived 65, 877 defendants in actions for 129 libel and slander 120 when may be waived 139 when not 142 when cannot be maintained, if action based on contract 140, 877 waiver of 190 when an action sounds in, and when not 190-193, 877 complaints in actions for 213 when complaint not in, though wrongful refusal 362 when people cannot restrain from issuinji bonds 443 when may from contracting debt 443 when action sounds in, and when on contract 459, 877 mere pendency of suit for goods sold, no bar to one for conversion 497 otherwise, if proceeded to judgment 497 waiver of conversion of money by agent 633 and tht)ugh states convtn-sion, sounds in contract 633 separate action against different Avrong-doers 744 See Trespass ; Trover. INDEX. 1005 TRADE-MARK: page. right to, and protection by injunction 445 instances of what are 44.5-447 name of a street 44G son not restrained from using family name 440 one cannot adopt trade-marli calculated to deceive 446, 898 nor can his goods bear same name as rival trader 44G even, in many cases, a common name 446 each case depends upon its own circumstances 446 can have but one trade-mark, and must affix to goods 447 mere declarations or advertisements cannot confer right 447 principle does not apply to name of a newspaper 447 if dissimilarity such one not calculated to be mistaken for other 447 only protects on kind of goods before used 447 if only small quantity sold by mistake, no action lies 447 if calculated to mislead, courts will not protect 447 if used by " executor," should show that fact 447 nor will court protect, if party sells short weight 447 good defense that plaintiSf thereby deceives the public 704 but one fraudulently imitating cannot objectfthat plaintiff's goods inju- rious 704 whether may use same as plaiutifTs for entirely different goods 704 laches a good defense 704 when street number cannot be made subject of 859 TRADES UNION: effect of agreement by members of G76 TRANSACTION: what is the same transaction 136 TRAVERSE: former defense by 500, 544 See Denial. TREES : rights of parties in, standing on or near line , 296 agreement for removal of 410 removal of trees cut on mortgaged premises 475 remedy of grantee for trees cut between agreement and conveyance 475 remedy for waste in cutting by tenant, etc 475, 476 See Trespass. TRESPASS : defendants in 129 distinctions in, abolished 224 old form of declaring in 224 what pleading to contain under Code 224 allegations as to ownership 224, 235 injury, how stated 225 motive or intent immaterial 225 wrongfully took 225 wrongfully entered close 225 complaint in 225 owner of animal liable for injury by, though no scienter 294 breaking and entry gist of action 294 injunction not granted to restrain 353 liability of married woman for 372 lies by one tenant in common against other who forcibly dispossess 444 of two kinds '■ 448 definition of, to real and personal property 448 breaking and entry gist of action ; other injuries mere aggravation 448 action failed if no breaking and entry 448 rule under Code 448 distinction still preserved 448 but if facts stated may be amended by striking out aDegations as to breaking 899 liability for injury by animal trespassing 448 liability for diseased sheep trespassing 448 1006 INDEX. TRESPASS — Continued : page. judgment for defendant in quare otattsum no bar for taking personal property 448 purchaser under agreement for deed may maintain 448 owner has right to support if soil in natural condition 449 but none to for superadded structure 449 right to pull down house without propping neighbor's 449, 889 digging well so house fell 449 must be appreciable damage 449 right accrues when building falls 449 one who sells for particular purpose must leave support for that 449, 899 no action for stopping footway so public travel over neighbor's land 449 A enters B's close and leaves his property, A may x'eturn it 450 A enters B's lands and takes his goods, A may enter B's and retake, 450, 900 otherwise if A's goods on B's without fault of latter 450 when one whose property stolen may enter another's close to search. . . . 900 A entering B's land and stopping a water-course 450 right to enter another's land to repair division fence 450 to repair dam 478 to abate nuisance 686 if line erroneously agreed upon, owner estopped from suing for crops.. 450 704 one tenant in common not liable, neither is his licensee 450 going to attorney's office to pay note and tearing it up 450 plaintiff must have possession though owner 450 unless premises in possession of tenant at will 450 but owner may maintain action on the case against tenant 450 if states the facts showing he is a reversioner 450 but owner may maintain action after obtains possession 450 party suing must show had actual and peaceable possession. '. 451 party having oldest possession prima, facte entitled to recover 451 fruit dropping on another's lands 4.51 title to trees on or near boundary line .' 451 action lies for destroying line tree 451 allowing water to run from one's eaves 451 but right of drip acquired by user 451 cutting timber after agreement for sale, but before deed 451 one redeeming may maintain for injury between sale and redemption. . 451 so one purchasing under mortgage foreclosure 451 owner bound to use so as not to injure neighbor 451 carelessly firing a blast 451 by owner of a pew in church 453 temporarily obstructing street while building 452, 869 nailing board over another's gardfen 452, 705 distinction between trespass and case 452 slight interference renders a party liable 452 as by signing indemnity bond 452 execution creditor not liable by becoming party to interpleader 452 though property sold under interpleader order 4.52 when is not, for approving levy by officer 899 purchaser under execution 452 nor sheriff for requiring certificate of indebtedness 452 attorney who issues execution 452 party directing suit against A, and B sued 452 party not liable for void process, unless sets it in motion 453 issuing execution on paid judgment 453 party not usually liable for acts of attorney 453 officer not liable for executing process after return day 453 when irregular process will protect party after set aside 453, 873 when, if judgment reversed 453 slightest intermeddling sufficient 453, 899 party not liable for taking wagou lent to him, if taken to shop for re- pairs 453 constable levying cannot take from sheriff holding prior levy 453 if one directs act, cannot show would have been done without 453 thief may sue wrong-doer 453 widow may sue any one but personal representative 454 owner of cattlo at pasture liable for injury they commit 464 otherwise, if hired to tenant 899 driving trespassing cattle into highway 454, 900 INDEX. 1007 TRESPASS — Continued: page. when they escape through his own defective fence 454 liability of bailee after has offered to deliver property 454 setting dog on sheep 454 purchaser under foreclosure entitled to crops 454 so devisee, unless excepted 454 officer severing guard-chain 454 owner takes his wagon, but another's whiffletrees 454 if owner forbids sale, does not waive purchasing 454 nor by receiving surplus 455, 899 but, if sues for sale, cannot recover surplus 455 selling property got on void contract after rescinded 455 A delivers B's goods to C, liable for C's refusal to deliver 455 how carrier liable for negligent loss 455 even if trespasser cannot untie rope of platform 455 building high fences on own land 455 lease void by statute of frauds, tenant to have crops then growing not liable for cutting 674, 873 one erroneously fixing boundary estopped untU authority revoked 704 before Code could show tenant in common, or license from one 704 under Code must be pleaded 704 leave of owner after agreement to convey, but before conveyance, good, 704 when corporation liable for agent taking earth 899 See Conversion ; Tbover. TRESPASSER: when owner of animal liable for injury by, to 294 TRIAL: sale on trial 424 no objection, that causes of action require different modes 753 definition of 788, 793 how issues to be tried , 788-791 whether issues of law to be first tried 788 how equity cases to be tried 789 Issues settled for jury trial 791 where judgment to be applied for, on default 793-795 See Eqxjitt ; Law ; Place of Trial. TROVER: who may maintain 75 defendants in 129 cannot be joined with replevin 143 complaint in 213 when need not allege possession 213 by personal representative, conversion after death, but before appoint- ment 213 by assignee in bankruptcy 213 by bailee 213, 214 how property described 213 lies by employer against one winning money from clerk 214 value of chattels 214 time of conversion 214 demand 214, 215 for check, payee's name forged 334 origin and theory of action 455 proof by plaintiff 455 If wrongful taking, no demand necessary 456 otherwise, if came legally into possessio7i 456 auctioneer sold horse owner had already sold 456, 458, 460 title not to pass till purchase-price paid 457 such purchaser can give no title 457 lies for money 457 so for ohoses in action 457 lies for pledge 457 but must tender amount due 457 action to redeem pledge 457 agent misapplied proceeds of bill discounbed 457 remedy against carrier who loses property 457, 900 1008 INDEX. TROVER — Continued : page. oue in whose name business done for benefit of debtor, lias title 457 one knowing banlc-bill had been found, oljaiiged it 458 demand necessary of purchaser from wrong-doer 458 otherwise, of trespasser from a trespasser 458 taking mortgage to secure a debt not a conversion 458 lies, though goods returned ; return only goes to damages 4.58 action once accrued, only discharged by satisfaction 4.58 merely opening boxes and taking inventory, not retaking of property . . 458 lies for property pledged on an usurious loan 458 bailee must return to bailor, and not to place where obtained it, at peril, 458 and to person designated 8.5.3 must be demand of bailee 458 but, if bailee deliver to another, is a conversion 459 not necessary against fraudulent purchaser 459 but seller must tender back what received 469 may surrender purchaser's note on trial 459 rescission should be promptly made '. 4.59 where action against infant on contract and not trover 459 when sounds in contract cannot change to tort 459 infant hired horse for one place and drove to another 4.59 liability of purchaser from bailee making fixture of personal property. . 4*10 agent selling property in good faith 460 so redelivering to wrong-doer or his agent 900 one replevying property liable to after suit terminated 4B0 one took watch to get loan and refused to return 460 for ooal dug by mistake 460 damages for property intentionally converted 460 when seller accepts order so as to be liable in trover 460 one took off wheels of wagon held conversion of threshing machine. . . . 461 chattel mortgagee sold property and delivered to purchaser 461 demand only evidence of conversion when has property 461 after title has passed former owner guilty of, if retakes 461 agent for selling may defend on ground of eviction 473 when mortgagee cannot maintain for trees out 475 general denial in, puts in issue plaintiff 's title 515 defendant may set up lien 631 one who throws out soil may sue wrong-doer 705 may show when plaintiff bought goods he knew belonged to another 705 and that he took the goods 705 or that they were taken on attachment against true owner 705 seller not estopped from showing taken from him by paramount title . . 705 when agent to sell liable for collecting draft 843 owner of paper collected is of proceeds so long as can be traced 843 whether agent to sell for certain price guilty of, on selling for less 843 carrier delivered hides to defendant by mistake 900 See Convebsion; Tkespass. TRUSTEE : who necessary defendants in action against 110 one cannot sue co-trustee for conversion Ill cestui que trust suing 117, 127 may maintain action for construction of trust deed 313 may set aside fraudulent transfer 338 statute of limitations in favor of, for not making report 682 See Ofwobbs ojt Gokpokations. TRUSTEES OF EXPRESS TRUSTS : who are, and how to sue 90 when cestui que. trust to be made party 93, 107, 127 TRUST : land conveyed to one to build on, and reconvey on payment of expendi- ture 901 UNCOKSCIONABLE DEFENSE : rule as tj, changed by Code 830 INDEX. 1009 UNDERTAKING : page. liability where judgment aflSrmed as to one appellant 461 reversal as to personal liability 461 that statute allows, is sufficient consideration 461 otherwise if not required and answers no purpose 461 or it appeal void 461 bond under order allowing party to give 461 legislature may increase damages 461 sureties liable though defendants practiced fraud on 462 in I'eplevin suit, to plaintiff instead of sheriif good 462 in such action not necessary to allege issuing of execution 462 nor in action on any undertaking unless expressly required 462 complaint on undertaking to discharge from arrest 463 to discharge attachment cannot show none issued 462 sufficient evidence of all the facts recited 463 if court of general jurisdiction, not necessary to allege facts 462 to procure attachment, action lies as soon as set aside 463 and if set aside, undertaking to discharge property invalid 463, 705 on arrest agreed defendant should obey orders and judgments, surety must pay the judgment 463 plaintiff's sureties in replevin liable for costs of appeal 463 so on appeal to county court for costs in supreme court 463 simply to appeal not liable for judgment below 463 sureties liable though judgment lien on real estate 463 and though levy on sufficient to collect 463 law required principal and sureties, and principal did not execute 463 not void if more favorable than statute requires 463 surety who pays judgment cannot recover back though reversed 463 binding though one of respondents dies 463 so liable to a substituted party ^ . . 464 so thougli new undertaking ordered and given 464 sureties, in such case as between themselves, jointly liable 464 but separate actions to be brought on each undertaking 464 though bail fail to justify may surrender principal 464 sureties liable though excepted to and fail to justify 464 otherwise if new sureties justify 464 not liable if judgment affirmed with leave to answer 464 must be judgment of affirmance ; order not sufficient 464 surety in, liable though party for whom executed guUty of fraud 674 in suit for injunction what complaint should show 705 denial that court decided not entitled to, good 705 satisfaction of, releases sureties and entitles principal to return of prop- erty delivered as security unless sureties party to fraud 901 See RbpijEVIN. UNDUE INELUENCB. See Fbaud. USAGE. See CtJSTOM. USE AND OCCUPATION: when landlord may sue for 193, 201 when assignee of lease not liable for 416 when does lie *1^ when devisee cannot recover for 693 See Lease: Rent. USER: right of drip from eaves acquired by ^1 for twenty years for public purpose 480 USURY: when usurer may sue on original security 191 when may recover part of a note 192 how money usuriously paid to be i-eco vered back 192 usurious mortgage given to one partner and proceeds applied to firm debt ■■■■■■ •. .-. ff bill lies to compel surrender of usurious security W9 127 1010 INDEX. VSURY — Continiied : page. but must be cloud upon title or some equitable reason for surrender 901 receiver of usurious borrower may recover back excess 410 trover lies for property usuriously pledged 458 money paid on usurious loan cannot be recovered back: 467 setting up by amendment 830 variance as to rate of, fatal unless amended 842 VARIANCE : between name in summons and complaint 157 how reached 157, 158 between summons and complaint as to relief asked 158-161 between allegations and proof of consideration 167 alleged wrongful act, proved negligent one 476 " very poor and of little value " not supported by showing worthless . . . 501 under allegation that act wrongful may show negligent 56G under allegation of tender may show waiver 506 but not in cases of protest 566 authority alleged, may show ratification 566 under i)erf ormance cannot show excuse 566 nor waiver 566 amendment in such case 566 under plea of entire want of consideration fails if any, however small.. 069 a plea of accord and satisfaction not supported by proof of tender 701 disregarded if no objection till after proof closed 832 provisions of Code as to 838 designed to provide against unless mislead 838 but not to cases, where case unproved in scope and meaning 839 if the whole case pleaded fail, is not a variauce 839 court may allow amendment in furtherance of justice 839 but not when changes entire scope and character of claim 839 allegation of express contract, proof of an implied one 840 allegation of written contract, proof of verbal one 840 allegation of mistaken and to recover back, proof of agreement to repay, 840 allegation of specific performance, defendant sold land, proof agreed to give to son, if would improve 840 allegation of time 840 allegation of wrong section of statute 840 allegation of agreement for sale proof of that, and for i-elease 840 allegation of protest, proof of waiver 840 allegation of non-payment and to avoid statute limitations, plaintiff proved part payment 840 allegation of wrongful taking, and to recover vindictive damages proved willful 840 allegation executed note as collateral security, and may prove de- livery 841 allegation that falsely and fraudulently made certain representations sounds in fraud 841 and unless scienter proved, cannot recover 841 allegation of loss, and proof of destruction 875 representations as to what wiU do in future, will not support fraud 841 if vendor dispose of property he agreed to sell, must sue for breach of contract 841 and cannot recover profits without agreement to sell, on account of buyers 841 on complaint against carrier for conversion proof of negligent loss insufficient 841 in such case should count on defendants' duty and neglect thereof S>41 but in such case proof that carried properly, but refused to deliver, iiisulficient 841 so where comjjlaint seeks to set aside conveyances as fraudulent, and proof shows amounted to a mortgage from which could redeem 841 complaint in replevin if returned before suit, cannot I'ecover damages for wrongful taking 842 evidence plaintiffs sold own goods, will not sustain complaint from money paid '. 842 so on complaint for damages cannot have specific performance 842 so in complaint for specific performance cannot have damages 842 INDEX. 1011 VARIANCE — Continued : page. unless asks for alternative relief 843 so on basis of legal transfer, cannot recover as for conversion 843 if allege nuisance upon certain premises, cannot recover for on those adjoining 842 allegation was gift in case of death at anij time, does not sustain gift mortia caitsa 842 if alleges artificial chanel, not sufficient to prove a natural one 842 as to rate of usury fatal, unless amended 842 to recover a draft and also money, cannot recover on proof of sale of property and receipt of draft, on which money collected and deposited in bank 842 although if facts had been set out, could have recovered S43 or in trover if not, had a right to negotiate draft 843 creditor's bill against husband and wife, it she die after issue, cannot have judgment for interest which devolves upon husband by such death 843 unless have misled, may be amended or disregarded 843, 844 what variances the rule covers 844, 846 how fact that misled to be proved 844 what is a change substantially of claim or defense 845 immaterial variances may be entirely disregarded 845 or oveiTuled at once without costs 845 common-law strictness, that allegations and proof should correspond, abolished 846 sufficient if the substance of the allegation proved 847 VENDOR AND PURCHASER: notice when party has option 394 vendor cutting timber after agreement, but before conveyance 451 ejectment by vendor against vendee 230, 331 damages where purchaser pays in advance 330 purchaser on condition title not to pass till payment 323 remedy of seller on a fraudulent purchase — : 459 purchaser from bailee who makes personal property a fixture 460 purchaser from one whose property converted / 460 after title has passed former owner cannot retake 461 if vendee refuses to accept deed, cannot recover amount paid 464 though agreement void by statute of frauds 464 to deliver between certain days, and give four days' notice 464 when premises at risk of vendee 465 when purchaser authorized to take possession 465 to pay price on arrival; lost at sea - 465 " foreign refined rape oil" must be such though equal to samples 465 where sellers make contract when not bound till buyer does 465 if buyer in default ejectment lies 465 without notice to quit 465 also for injury to inheritance 466 but purchaser not liable for reiit 466 until contract ended and becomes tenant at will 406 when seller liable for rent 406 vendee's rights extinguished after recovery in ejectment 466 vendee refuses to give up, and vendor cannot perform 466 vendee in possession may sue for injury to premises 466 so vendor where vendee in default 466 if vendee leave goods, must pay vendor for keeping 466 though vendor permits vendee to talce them 466 when tender at vendee's house good 702 if vendor dispose of property lie agreed to sell, must sue for breach of contract 811 and cannot recover profits, without agreement to sell on account of buyer 841 See CoNTEBSiON ; Lien ; Pekformance ; Reasonable Time ; Sale ; Tender ; Warranty; Waste. VENUE: in action against witness 483 See Complaint ; Place os Trial. 1012 INDEX. VERDICT : paoe. presumption or intendment after 848 VERIFICATION : object of 279 changes in provisions of Code as to 279, 280 provisions of Code as to 280 may be omitted, where privileged from testifying 280 how fact, that privileged to be sliown 280 may servo affidavit showing privilege 281 form, when made by agent or attorney 280, 281, 282 on written instrument for payment of money 282 in other cases 282 form by party 279, 280 not good to say substantially true 281 nor according to best knowledge and belief 281 if by one of several parties, must be by one knowing facts 281 party in interest may verify 281 guardian of infant to verify 283 cannot be made before attorney 283 remedy 283 remedy, if verification defective i 283 copy of, must be served 283 venue of, must be stated '.. 283 remedy, if omitted 283 merely adding, is not an amendment 283 court may allow, to be amended by adding 283 when defendant excused from GOO of answer to be same as complaint 641 when defendant privileged from verifying 641-643 if one defendant privileged 641 if excused as to part of pleading 641 how allegations to be denied in such case 643 when pleadings do not show excused, affidavit showing to be annexed. . 643 otherwise, if excuse appears on face of pleadings 643 if verification required and none annexed, pleading may be returned. . . 643 or notice to be given that will be disregarded 643 defendant may verify answer, though complaint not, and require of reply 643 when may state true to his knowledge 643 when each of several defendants required to verify 644 form of verification in such cases 644 maker and indorser 644 who are united in interest, so one may verify 644 when one defendant acquainted or not with the faots 644 what verification to show, when made by one 645 what when by attorney 645 no part of good pleading 714 when required, to reply and when excused 724 VESSEL : lien for raising sunken 422, 679 VOLUNTARY ACT : boarding from charitable motives 489 going journey to become bail 489 VOLUNTARY PAYMENT : money paid voluntarily with full knowledge of facts not recoverable. . . 466 grantee, without eviction, paying taxes assessed before conveyance 466 paying void tax under protest 466 even though collection enforced by legal proceedings 4G6 if ignorant of facts when gave note, must show was at payment 467 executor must not paj' interest on mortgage on lauds devised 467 unless out of the devisee's fund under will 4G7 city paid too much for land, owner relying on that assessment 467 contractor removed rubbish, not bound to 467 INDEX. 1013 VOLUNTARY PAYMENT - Continued: page. if money be paid on usurious loan, not recoverable 467 iudorser paid note, supposing was protested 467 may recover back money paid under mistake 467 owner paying under duress to get goods 467 so paying alleged lien '.'.",. 467,' 468 but rule not applicable to real estate 467 paying illegal sum to get clearance of vessel 467 illegal costs paid without taxation 467 otherwise if taxed ' ' 468 owner of one of several parcels paying lien on all 468 though not liable to personal action 468 unless personally liable to pay it 468 one paying debt not liable for, not entitled to subrogation 468 VOLUNTARY SERVICES : when no recovery for 491 VOTER : action by, lies against inspector acting improperly 468 statute recLuiring " iron clad " oath unconstitutional 468 deserters not disqualified until after conviction 468 Inspectors liable for refusing to register 468 though may reconsider and register before election 468 whether necessary inspector should act maliciously 469 malice may be inferred 469 sufficient that act was wrongful 469 whatever is intentionally done is maliciously done 469 officer liable for not performing ministerial act 469 WAIVER : how, of performance, etc., alleged 180 of tort 190 owner of horse hired need not return hire before suing for injury 302 of right to set aside conveyance 326 ■ of jury trial ' 408 or one by owuer receiving surplus on illegal sale 455, 899 owner of lost bill took part of change, none 4.57 that heir cannot maintain suit waived if not taken at trial 481 mere failure by witness to object that fees not paid, not a waiver 482 when none that contractor does not object or complain 494 may be shown under plea of tender 566 but not of protest under allegation 566 under allegation of performance cannot show waiver 566 amendment in such case 566 of conversion of money by agent 633 in suit to restrain foreclosure defendant demanded one ; cannot waive after trial 637 if obligation of third person to be in full if paid, is though paid after maturity 662 of condition that suit shall be brought within one year 677 of objection that money tendered not brought into court , . 701 of tender. 701, 702 if not personal may waive that 702 of right to demur by answering 709, 773-775 if, does not answer or demur, waives objection except to jurisdiction .773-775 or that does not state cause of action 773-775 whether plaintiff waives to a defense 773 must specifically object that plaintiff has not legal capacity to sue 773 waives objection to improper joinder of parties 773 or to coverture of plaintiff. 773 noticing cause for trial, is of right to amend 820 See County Coubt ; Demukreb ; Teespass. WARRANTY: when action sounds in, though allegations of fraud 192, 193 difference between, and fraud 221 1014 INDEX. WARRANTY — Continued : page. of title 221 when and how far agent warrants authority 292, 470 as to premises beinj^ tenantable 365 none, where banlc mistakenly said to drawee held bill ot lading 379 on executory sale, implied that article merchantable 469 if not, vendee, after reasonable time for examination, may return, 469 891, 901, 902 if express warranty, may recover without offer to return 469, 891 or, if acceptance induced by fraud 891 or examination inconvenient 891 no implied warranty as to quality of slops 469 seller may warrant that is a particular article, as " Bristol cabbage " . . . . 469 damages in such cases 470 but such warranty must be specific 470 when breach in such case, occurs as soon as made 901 not implied from knowledge of use intended by buyer 470 unless seller a manufacturer 470 or applied to to furnish particular article 902 none, that horse not glandered 470 although might be liable for fraud 470 agent presumed to have authority to warrant 470, 902 though seller instructed not to warrant 470 none by railroad, that goods will arrive on schedule time 470 damages in cases where agrees to deliver at particular time 902 warranty that horses good for livery, not broken, If with loal 470 seller of account warrants has one for that amount 470 so one who sells a note 470 so that makers competent to contract 470 unless buyer knew facts 470 pledgee, who returns stock held as collateral, does not warrant 471 bank does not, though says to drawee holds biU of lading 471 purchaser may recover on, though sold property for full value 471 known or patent defects not covered by general 471 whether defects visible, question for jury 471 on sale of provisions 471, 472 innkeeper furnishing improper food 471 must be made during negotiations 471, 902, 903 seller made representations, and horse sold at auction next day, 472, 902, 903 though liable, if representation fraudulent 472 auctioneer may warrant 472 made after sale completed, without consideration 472, 902, 903 evidence of amount sold for at auction, competent 472 otherwise at private sale 472 only part of packages opened, jury may find all same 472 but condition two or three weeks after shipping, no evidence of at shipping 472 on judicial sales, no warranty 472 is that article is sound, and not, will remain so 473 unless express, made as to future 473 covenant of, not broken, if conveys with right to carry water 473 otherwise, if right of way 473 one in possession ini pliedly warrants title 473 otherwise, if not in possession 473 if vendee notifies vendor of suit, latter bound by 473 if defends without notice, must prove vendor had no title 473 but vendee can only recover nominal damages, unless pays 473 vendee may yield to owner and recover, if eviction 473 but must bo eviction 473 if one sells as agent, when liable on warranty of title 473 if sued in trover, may defend if evicted 473 if part of demand s(jld paid, vendee may recover of vendor 473 on sale of agreement for lease 474 warranty has title, if agrees to lease 474 warranty, if ordered for special purpose 474, 902 but not, if special article ordered, though for particular purpose 474 if that will pass inspecti(ni ; if does not, must offer to return 625 by sample, may be found from circumstances 902 See Sale ; Vendok and "Vendee. INDEX. 1015 WASTE : PAGE. writ of, abolished 238 remedy 2i]S injunction lies to restrain, after sale in partition 3.52 remedy of party redeeming, for 474 remedy by mortgagee for 474, 47.5 necessary allegations in such case 474 remedy ot mortgagee in possession 475 how far court will restrain removal of trees cut 475 remedy of mortgagee in such case 475 remedy of purchaser for cutting trees between agreement and convej'- ance 475 cutting willows, when not 475 tenant cannot get flre-wood elsewhere, and cut trees 475 but may cut for self and hired man's house 476 unless supply of timber scanty ■ 476 reversioner may recover for, though alienates before suit 476 negligently burning a building 476 is to cut trees, if supply scanty 476 so to remove fodder 476 unless justified by custom 476 to Impoverish by constant tillage 476 to cut timber and erect new out-house 476 catting of ornamental trees restrained 476 rule of damages, where cut by tenant 476 if equity acquires jurisdiction to stay, will decree damages for what done 476 WATER AND WATER-COURSES : allowing to run from eaves upon another 451 when covenant in deed broken if right to exists 473 one interfering with, liable unless authorized by statute 476 where authorized by statute liable only for negligence 477 considering nature of stream, etc 477 if railroad company changes must preserve and restore to channel 477 liability of one for percolation 477 wharves built by authority of legislature not a nuisance 477 owner of low lauds not obliged to drain and may fill up so will not drain neighbor's land -. 477 otherwise if water collects and runs in well-deflned channel 477 if different owners of dams each to contribute to repairs 477 if bank of creek gives way owner not bound to repair 477 but owner below may enter and repair breach 478 owner may sink well though destroys neighbor's 478 unless draws off surface water 478 must not contaminate 478 throwing refuse, saw dust, etc., into 478, 903 permitting saw dust, etc., to fall into 478, 903 if waste-weir, does not give right to put in new raceway 478 conveyance of mill gives right to race way 478 exceptions to rule 478, 479 when sale of lands over which raceway reserves 4:79 grant of mill site, if no mill, gives no right to flow adjoining lands 479 grant of right to dam, binds subsequent purchasers 479 though at purchase old dam had decayed 479 mere verbal license may be revoked 479 special damages from destroying dam to be alleged . >• 479 ■ if embankment gives way presumptive evidence of negligence 904 if alleged, may recover for loss of use of mill 479 owner of two privileges selling one restricting use for particular pur- pose . 479 right to, but not to raise above certain height 479 purchaser may restrain diversion, though was going on at purchase 479 grant of surplus beyond what required for mill 479 grant for specific purpose restricts to use for that 479 acquiring right to flash boards for particular part of year 479 owner below cannot cause back water to mill above 480 question as to height of water and not of dam 480 placing manure so filters into 480 may be detained for reasonable time 480 J 016 INBEX. WATER AND WATER-COURSES —Continued: page. right aoqui red by user for public purpose iSO liable for negligence in building or maintaining dam 480, 904 excepting right for another to draw from spring 480 right to cut or remove ice 480 covenant to draw oif six days in year runs with land 480 right to, can only be granted as an incident to land 480 railroad company for breaking away of embankment 387, 477, 904 one digging ore left hollows where water collected and did damage 903 one tenant in common cannot acquire or transfer rights 903 right of one to enter another's land to stop 450 if alleges artificial channel not suffloieut to prove natural one 842 WAY: damages in action for obstructing 321 when covenant broken if exists 473 how right of, should be pleaded -. 703 how of necessity to be pleaded 705 WIDOW : may sue any one but personal representatives 454 cannot, as such, give title to property of husband 671 See Advancement. WILLS : where comes incidentally in question court will construe 480 action will lie to set aside for fraud 481 such as influence of clergyman over parishioner 481 bill for construction of 481 allegations in such case 481 action to establish and prove a lost will 481 so to establish as against heir 481 who may maintain action for construction 481 objection waived if not taken at trial 481 bill to determine who legatee where mistake 481 rights and liability of administrator without knowledge of 671 See Construction of Wills. WITHOUT DELAY : agreement so to do act 410 WITNESS : when liable for damages for non-attendance 481 plaintiff must show some damages 4S:,' but need not show had valid cause of action 482 plaintiff required to show was material 482 and that his absence caused injury 482 and that failure to try on account of absence 482 must show subpoenaed ; waiver not sufficient 482 must pay daily fees including Sunday 4S2 mere failure to object no waiver 483 what plaintiff required to allege and prove 482 not liable if had reasonable excuse 482 or not subpoenaed long enough before attendance required 482 liability for not producing paper on duces tecum 483 where action to be brought 483 not liable for falsely giving testimony 483 nor for slander uttered as 48;5 nor guilty of murder though by perjury procures conviction 483 WORDS : to be construed according to ordinary meaning 804 WORK AND LABOR : when contract not entire, but i-ecovery may be had each month 483 if hiring for definite period, must be full performance 48.'? agreement to play two weeks, return and play two more 483 INDEX. 1017 WORK AND LABOR. — Continued : page agreement to work cue year without designating time of payment 484 to work one month, and if satisfied six months 484 so to hire if Alls place satisfactorily ' 904 if works more than one elects to work the six 484 privilege of leaving if dissatisfied 484, 904 either party allowed to terminate if dissatisfied 484, 904 man who has wife living marrying a woman 484 woman may recover if affirmative fraudulent representation 484 such action does not survive 484 so if husband under such circumstances obtain wife's money 484 if servant wrongfully discharged, may recover wages for full period . . . 485 conditions of doing so 904 what is a sulfloient discharge 485 master may show servant during time been at work 485, 904 and is his duty to use diligence in obtaining work 485, 904 remedies of party wrongfully discharged 485, 904 action on one theory will bar others 485 in action for certain work instead of certain period, rule does not apply, 485 but carrier may insist upon carrying and upon full freight , 485 one party cannot modify contract without assent of other 485 to work one year payable monthly may insist upon all past months 485 If paid monthly, jury may find agreement to do so 485, 486 agreement to do certain work or pay certain sum .' 486 if A agrees to work, cannot compel to receive another 486 nor if agrees to take coach from A is compelled to take one from C 486 surety not liable for unless work performed in consequence of agreement, 486 working under agreement " amount of pay I leave to you " 486 no action lies until refusal to fix amount 486 under agreement, as employer should deem right 486 if agreed third person shall fix, no action lies until he fixes 486 agreement to do to satisfaction of third person 486 payment to be made on production of certificate of third person 486 unless he decline to act 486 or act unreasonably or in bad faith 487 or adverse party decline to allow him to act 487 or if in his employ to procure him to act, after request 487 party procuring arbitrator to refuse cannot recover 487 amount named by arbitrator may be recovered 487 without further proof of rendition of services 487 provided both parties had notice of time and place of acting 487 and an opportunity to be heard 487 if be apparent no notice intended need not be given 487 if arbitrator in employ of party he contracts he shall act and do so fairly, 487 to do certain work and all extra ordered by certain time or to pay damages each day 487 contract that if does not proceed as rapidly as A deems necessary may terminate, etc 487 employee in such case bound to pay expense 487 unless delayed by acts of employer 487 arbitrator to settle only such points as referred to him 487 his decision on other points not binding 487 cannot fix price of work not within contract 487 contractor agreeing to abide by decision of engineer though stockholder, 488 or be the party in interest 488 although if a judge could not have sat in the case 488 otherwise if unknown to contractor be party in interest 488 if architect act unfairly court will relieve 488 aoreement to work for A if will remember in will 488 no action lies in such case till death of employer 488 if any legacy cannot recover though inadequate 488 if to be paid in land can only recover value of services 488 ordinarily law implies promise to pay for 488 when implied between parent and ohUd or relatives, and when not 398, 399, 488-490, 883, 884, 904 unless intention be to pay and be paid no ex post facto charge 489 goin"' journey to become bail 489 keeper of county poor-house when bound to pay pauper 489 sickness excuses performance 490 wife sick so could not play 490 128 1018 INDEX. WORK AND LABOR— Co?itra«etL- page. so as to iiny other inability not fault of party 490 Biioli as f reiving of a river 490 or foundering of a ship .. ; 490 master died after partially instructing apprentice 490 in cases of such failure according to contract rate 490 when master justified in dischargiiig servant . . .■ 490 servant went to see sick parent 490 servant refused to work on Sunday 490 servant left in consequence of harsh language 490 one tenant in common oanuot oust co-tenant, and when sued for profits recover for 490 or for mrmey s expended 490 if one enters without color of right, cannot recover for 491 though owner promise to pay 491 otherwise if entered under color of right 491 unless contract void by statute of frauds 491 when cannot recover, though agreed to give lease if would do 491 the remedy is by a specific performance 491 except where fraudulently induced to do the work 491 no recovery for work voluntarily done without request 491 although law will presume request, in first instance 491 when officer of corporation cannot recover for 491 A's logs carried upon B's land 491 no defense to employer that agreed to pay third person, unless shows has 492 value of services may be proved by opinions 493 but not how much worth " under all the circumstances" 492 cannot recover for extra hours, unless employer agreed to pay 492 agreeing to taking pay from assessment by city 492 where neglects to assess 492 must count on contract, unless complete perf ormau ce 492 if not, must plead facts 492 officer not entitled to more if duties increased 492 nor one having extra work done on house 492 unless informed or must liav6 known, would increase expense 492 if servant properly discharged, cannot recover for 493 as for selling to another house, of which he is a member 493 for agent must faithfully serve his principal 493 but traveling agent may receive orders for goods of another house .... 493 discharged for drunkenness, cannot recover for what has done 493 to do carpenter work, must get building ready for 493 so where to furnish plans or do other acts 493 and if unreasonable delay, may recover additional expense 493, 494 and no waiver that does not object or complain 494 contractor cannot remove obstruction, and recover for so doing 494 agreement to employ for a year, to commence in future void 674 if peddler required to have license has none, cannot recover 676 effect of agreement by members of trades union 676 when contractor bound to increase number of laborers or may rescind contract , 690 if sues In assumpsit may set up done under contract plaintiff failed to keep 690 and must perform the entire contract 691 under contract to make three or four models, workman may elect 691 may sue for not properly doing though recovered for 695 good defense that clerk persisted in selling to firm of which he was one, 706 hired to use best endeavors, etc. ; plea that did not, wherefore dismissed him, good 706 lace buyer required to " card^' lace and refused 706 hired to work three years and have house and certain sum if master sold, unless grantee would hire 904 hired to drive coach on Sunday 905 See Mastek and Servant ; Pabent and Chiuj. WRITTEN: all pleadings to be legibly 808 effect of not being, and remedy for 809 INDEX. 1019 WRITTEN INSTRUMENTS: page. how declared upon by giving copy 17i 175, 181, 183, 186 how declared upon by substance 181, 182, 184^196 not necessary to state are in writing 205, 254 not to be set out in /icbo verba 328 WRONG-DOER: no demand necessary against 321 when cannot recover for services or loss 491 how far judgment against one of several a bar 672, 673 release of one is of all 673 on payment of recovery obtains title to property 673 separate actions against different wrong-doers 744 See Negligmnoe. WRONGFUL ACT: under allegation of, may show negligent 566